12-31-09
-- Gaile Owens
(pictured) and Mary Winkler are two women who committed similar
crimes under similar circumstances in Tennessee. Both women
suffered from abuse from the spouses they killed, and both were
examined by the same psychologist, twenty years apart. The
psychologist said both women suffered from battered woman's
syndrome. Mary Winkler confronted her husband with a shotgun and
shot him in the back in 2006. Gaile Owens hired a stranger to
kill her husband. Winkler was indicted for first-degree murder,
convicted of voluntary manslaughter and served about two months
in a mental health facility. She is now free and has custody of
her children. Owens is on death row, awaiting execution by
lethal injection. . . . According to an article by John
Seigenthaler in the Tennessean, "The dramatic difference in the
sentences received by Winkler and Owens relates directly to the
manner in which the two cases were tried, how their separate
teams of lawyers handled their cases and how two different
judges dealt with their 'battered woman' defenses." Winkler
testified on her own behalf regarding the abuse she suffered,
while Owens did not take the stand in order to protect her
children from hearing the details of her abuse. Winkler was
represented by experienced criminal lawyers, whose expenses were
paid by her friends. Owens, on the other hand, had trouble
finding legal representation. Her first lawyer withdrew from the
case because she could not pay him. Perhaps the starkest
difference between the two cases were the women's pleas.

12-31-09 --
Researchers from the University of Texas at Dallas recently
published a study on whether executions deter homicides using
state panel date and employing well-known econometric procedures
for panel analysis. The authors found "no empirical support for
the argument that the existence or application of the death
penalty deters prospective offenders from committing homicide."
The study was published in the journal of Criminology and Public
Policy and authored by Tomislav V. Kovandzic, Lynne M. Vieraitis
and Denise Paquette Boots, all professors of criminology. The
study concluded, "In sum, our finding of no deterrent effect of
the DP (death penalty) on homicide suggests the risk of
execution does not enhance the level of deterrence. Therefore,
we conclude that although policy makers and the public may
continue to support the use of the death penalty based on
retribution, religious grounds, or other justifications,
defending its use based on deterrence is inconsistent with our
findings. At a minimum, policy makers should refrain from
justifying its use by claiming that it is a deterrent to
homicide and explore less costly, more effective ways of
addressing crime."

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12-30-09
-- A recent study
published by a Duke University economist revealed North Carolina
could save $11 million annually if it dropped the death penalty.
Philip J. Cook, a professor at Duke University's Sanford School
of Public Policy, calculated the extra state costs of the death
penalty during fiscal years 2005 and 2006. He calculated over
$21 million worth of expenses that would have been saved if the
death penalty had been repealed. The total included extra
defense costs for capital cases in the trial phase, extra
payments to jurors, post-conviction costs, resentencing
hearings, and the extra costs to the prison system. This
conservative estimate did not include resources that would have
been freed up in the Office of the Appellate Defender and the
North Carolina Supreme Court, the extra time spent by
prosecutors in capital cases, and the costs to taxpayers for
federal appeals. Cook concluded that costs are not the only
concern, but relevant to the discussion of whether the death
penalty should be retained, "The bottom line is that the death
penalty is a financial burden on the state and a
resource-absorbing burden on the trial courts. That conclusion
is relevant to the debate over whether preserving the death
penalty is in the public interest…." He also commented, "It's
not an ideal use of resources to have so much time devoted to
such a small number of cases if your goal is to reduce crime
rates."

12-28-09 --
Persuading the federal courts to overturn a murder conviction is no
simple matter, but lawyers for Zachary Wilson have now done it twice
-- in two unrelated murder cases -- and the
latest decision also throws out a death sentence. . . .
Both rulings are victories for defense teams led by Assistant
Federal Defender Michael Wiseman, who successfully argued Wilson's
habeas petition before U.S. District Judge John R. Padova and then
defended Padova's rulings in appeals to the 3rd U.S. Circuit Court
of Appeals. . . . In the first case, Wiseman argued that prosecutors
improperly struck blacks from the jury when Wilson was tried for the
February 1982 shooting of David Smith following a dispute over a
game of craps.

12-23-09 -- County estimates in Texas
indicate that the death penalty system is much more expensive
than sentencing inmates to life imprisonment. Gray County spent
nearly $1 million seeking the death penalty against Levi King,
even though he pleaded guilty to murder. Moreover, these costs
do not include the cost of appeals, which will further increase
the cost of the capital case, nor the costs of cases in which
the death penalty is sought but not given. By comparison, a
non-death penalty murder case in nearby Lubbock County typically
costs about $3,000, court officials estimate. The average cost
to house an inmate in Texas prisons is $47.50 per day, according
to Michelle Lyons, spokeswoman for the Texas Department of
Criminal Justice. Thus it would cost about $17,340 to house an
inmate for a year and $693,500 for 40 years, far less than even
part of the death penalty costs. The regional public defender's
office estimates that just the legal costs for a death penalty
case from indictment to execution are $1.2 million. Lubbock
County Criminal District Attorney Matt Powell said, “I don’t
dispute that it’s more expensive,” but said he never takes cost
into account when deciding whether to seek the death penalty.

12-22-09 -- New evidence in the Troy Davis
case in Georgia has recently emerged, further implicating
another suspect in the murder of off-duty police officer Mark
Allen MacPhail. In 1991, Davis was sentenced to death for
officer MacPhail's murder. Davis became the primary suspect
after Sylvester "Redd" Coles told the police about Davis's
presence at the crime scene. During his 1991 trial, nine
prosecution eyewitnesses testified against Davis. All but two of
the witnesses (one of whom is Coles) have recanted their
testimony. The new testimony was provided by Quiana Glover, who
was at a friend's house when she said Coles admitted to killing
MacPhail. The Atlanta Journal-Constitution quoted her affidavit
as stating that Coles knew the murder was being falsely
attributed to Davis instead of himself. In August 2009, the
U.S. Supreme Court issued an historic order, continuing Davis's
stay of execution and instructing a federal District Court judge
in Savannah to hold an evidentiary hearing to decide whether
Davis's new evidence clearly establishes his innocence.

12-21-09 -- A recent New York Times
editorial commented on the new one-drug lethal injection
protocol used in Ohio for the first time on December 8, but
concluded that "the execution only reinforced that any form of
capital punishment is legally suspect and morally wrong." The
Times agreed with the late Justice Harry Blackmun who called
such manipulations “tinker[ing] with the machinery of death.”
The editorial also noted the risks of exeucting the innocent:
"It has also become clear — particularly since DNA evidence has
become more common — how unreliable the system is. Since 1973,
139 people have been released from death row because of evidence
that they were innocent, according to the Death Penalty
Information Center." The editors ended by saying that repealing
the death penalty "is the way to eliminate the inevitable
problems with executions." Read the full editorial below.
Read more

12-20-09 --
Condemned inmate Troy Anthony Davis filed the legal equivalent of a
Hail Mary when he petitioned the U.S. Supreme Court for a hearing on
his innocence claims. . . . But in August, for the first time in
nearly half a century, the nation’s highest court took a case filed
directly to its docket that had not come up from a lower court on
appeal. Once again, Davis, who sits on death row for killing an
off-duty Savannah police officer in 1989, was spared execution. And
since the reprieve, Davis’ lawyers say a new witness has come
forward on his behalf. . . . “It was just stunning,” said U.S.
Supreme Court historian Lucas A. “Scot” Powe, a professor of law and
government at the University of Texas at Austin. “But I understand
why the court did it. It was Davis’ last chance. He had exhausted
all other possible appeals.”

12-18-09 -- The Death Penalty Information
Center released the
“The Death Penalty in 2009: Year End Report” on
December 18, noting that the country is expected to finish 2009
with the fewest death sentences since the U.S. Supreme Court
reinstated the death penalty in 1976. Eleven states considered
abolishing the death penalty this year, a significant increase
in legislative activity from previous years, as the high costs
and lack of measurable benefits associated with this punishment
troubled lawmakers. . . . “The annual number of death sentences
in the U.S. has dropped for seven straight years and is 60% less
than in the 1990s,” said Richard Dieter, the report’s author and
DPIC’s executive director. “In the last two years, three states
have abolished capital punishment and a growing number of states
are asking whether it's worth keeping. This entire decade has
been marked by a declining use of the death penalty." There
were 106 death sentences in 2009 compared with a high of 328 in
1994. . . . New Mexico became the 15th state to abolish the
death penalty, and 9 men who were sentenced to death were
exonerated in 2009, the second highest number of exonerations
since the death penalty was reinstated. The total number of
exonerations since 1973 has now reached 139. . . . (Read “The
Death Penalty in 2009: Year End Report”
here, Dec. 18, 2009. DPIC's press release may be
read
here. See also
previous DPIC Reports.
Read more

12-17-09 -- On December 15 the United
Nations High Commissioner for Human Rights marked the 20th
anniversary of an international death penalty treaty by calling
for the universal abolition of capital punishment. Navi Pillay,
the top UN human rights official, urged all states to adopt the
Optional Protocol to the International Covenant on Civil and
Political Rights. The protocol, which bars the death penalty,
was introduced in 1989. “Abolishing the death penalty is a
difficult process for many societies," she said. "[A]nd
ratification of the Optional Protocol can often only come about
after a period of national debate. Until they reach that point,
I urge those States still employing the death penalty to place a
formal moratorium on its use, with the aim of ultimately
ratifying the Optional Protocol and abolishing the punishment
altogether everywhere.” In her statement, she enumerated a
number of issues with the death penalty, including "the
fundamental nature of the right to life; the unacceptable risk
of executing innocent people by mistake; the absence of proof
that the death penalty serves as a deterrent; and what is, to my
mind, the inappropriately vengeful character of the sentence."
To date, 140 countries no longer carry out the death penalty,
and 72 countries have ratified the Optional Protocol on ending
the death penalty. Read the full statement below. . . .
Read more

12-17-09 --
More death row convicts were executed in the United States this
year than last, but juries continue to grow more wary of capital
punishment, according to a new report. . . . Death sentences
handed down by judges and juries in 2009 continued a trend of
decline for seven years in a row, with 106 projected for the
year. That level is down two-thirds from a peak of 328 in 1994,
according to the report being released Friday by the Death Penalty Information
Center, a
research organization that opposes capital punishment. . . .
“This entire decade has been marked by a declining use of the
death penalty,” said Richard Dieter, the executive director of
the group. . . . The sentencing drop was most striking in Texas,
which averaged 34 death sentences a year in the 1990s and had 9
this year. Vic Wisner, a former assistant district attorney in
Houston, said a “constant media drumbeat” about suspect
convictions and exonerations “has really changed the attitude of
jurors.”

12-16-09 -- A recent editorial in the
Virginian-Pilot called for eliminating the death penalty as a
good way to address the $3.5 billion gap in the state's budget.
"Doing away with the option of a death sentence makes sense on
several levels," the editors wrote. "It would save the state
from having to pay fees associated with lengthy trials and years
of appeals. It would end the agony of repeated court hearings
for the families of victims. It would eliminate the four
perpetually understaffed capital defender's offices, whose
attorneys handle appeals automatically generated when people are
sentenced to death row." The paper suggests that the $2 million
spent per execution could be better put toward education, public
safety and crime prevention efforts. "Is the cost of an
execution really worth it when, for less than half the price, we
could put a killer in a prison cell, locked away from society
for life?" Read the full editorial below. . . . Read
more

12-15-09 -- A
single death penalty case in Indiana can cost taxpayers as much
as $1 million. In Marion County, the costs of preparation for
three potential death penalty trials have reached $659,000 this
year alone, according to the Public Defender Agency. A
high-profile death penalty case in the same county has cost
nearly $850,000 and not all the bills are in. Pursuing a life
sentence costs less than the death penalty, even considering the
expense of a convict's longer incarceration, according to
Indiana studies. Representation is more expensive for death
penalty defendants because each must have two qualified
attorneys. "Every dollar we spend attempting to do this, that's
money we could have spent elsewhere," said Chief Public Defender
Robert Hill. "(But) we have a constitutional mandate to defend
our clients." Since 2000, Hill's agency reports, defense bills
in Marion County death penalty cases have totaled $3.9 million.
Statewide, costs to taxpayers for the defense in trials and
appeals have been nearly $20 million since 1990, according to
the Indiana Public Defender Commission.

12-14-09 -- Two former military
servicemen raised concerns about the use of the death penalty
for war veterans who have endured traumatic experiences while
serving in the United States military. Karl Keys, a former
Marine, and Bill Pelke, a former sergeant in the First Air
Cavalry, cited the examples of James Floyd Davis and Manny
Babbitt, veterans who received Purple Hearts for their service
in the Vietnam War but were sentenced to death nevertheless.
Davis and Babbitt were both suffering from post-traumatic stress
disorder when they committed the crimes that resulted in their
death sentences. Babbitt was executed in 1999 in California
shortly after he received his Purple Heart. Davis currently
resides on North Carolina's death row. Keys and Pelke wrote,
"Soldiers are coming home traumatized by the carnage they've
seen. As veterans, we believe those who commit crimes due to
severe mental problems should be treated, not killed." They go
on to say, "Capital punishment's costs to states drain our tax
dollars away from smarter and more effective approaches to law
enforcement and crime prevention and from additional quality,
affordable mental health services." Read the entire article:
Read more

Eligible prisoners can't be
refused early release just because of the gravity of their
crimes -- 'some evidence' has to show the inmate would pose a
threat to public safety, some judges have ruled.

By
Carol J. Williams, The Los Angeles Times

12-13-09 --
Reporting from Vacaville, Calif. - During the 26 years that
James Alexander has spent in prison for killing a fellow drug
dealer, he has maintained a spotless behavior record and devoted
himself to helping other inmates shake addictions. . . . He's
been such a model prisoner that state parole commissioners -- on
three occasions -- recommended that he be released. All three
times, Gov. Arnold Schwarzenegger overruled them. . . .
Alexander, 47, is among the hundreds of so-called lifers whom
state parole boards have deemed rehabilitated and ready to
rejoin society, but who sit behind bars because their crime was
murder. In recent years, some judges have sided with lifers,
ruling that the state can't deny an inmate parole solely because
of the gravity of his original offense but rather must provide
"some evidence" that he would pose a threat to public safety if
released.

Books: Angel of Death Row

Death Penalty Information Center

12-11-09 --Renowned death penalty
defense attorney Andrea Lyon's forthcoming book, Angel of Death Row: My Life as a
Death Penalty Defense Lawyer,
chronicles her 30 years of experience representing clients in
capital murder cases. In all of the 19 cases where she
represented defendants who were found guilty of capital murder,
jurors spared her clients’ lives. Lyon, who was featured in
the PBS documentary Race to Execution and was called the "angel
of death row" by the Chicago Tribune, gives readers an inside
look at what motivates her during these difficult cases and
offers behind-the-scene glimpses into many dramatic courtroom
battles. Lyon is the founder of the Center for Justice in
Capital Cases based in Illinois and a professor of law at DePaul
University College of Law. The book includes a foreword by Alan
Dershowitz, who calls Lyon "a storyteller par excellence."

12-10-09 --
A Texas death row inmate facing execution next year has sued a
Panhandle prosecutor, alleging she is denying him access to DNA
evidence that has never been tested and could prove he is innocent
of murdering three people in 1993. . . . Henry Watkins Skinner
alleges in his original complaint in Skinner v. Switzer that the
refusal by Lynn Switzer, district attorney for the 31st and 223rd
Judicial Districts, to release the biological evidence for testing
violates Skinner's 14th Amendment right to due process and his
Eighth Amendment right to be free from cruel and unusual punishment.
Skinner sued Switzer on Nov. 27 in the U.S. District Court for the
Northern District of Texas in Amarillo. . . . In the complaint,
Skinner asks the court to declare that continued withholding of the
DNA evidence violates his constitutional rights. He seeks an
injunction requiring Switzer to release certain biological evidence
to him -- including vaginal swabs and fingernail clippings from the
female victim, any biological material on two knives found at the
murder scene, and blood and hairs on a jacket found next to the
female victim's body -- so Skinner can test it at his own expense.

12-10-09 --
The Ninth U.S. Circuit Court of Appeals yesterday threw out the
death sentence of a former Van Nuys resident who killed two men with
a knife during the botched burglary of a Tarzana home in 1982. . . .
The court, sitting en banc, voted 8-3 to affirm a district court’s
ruling granting Scott Lynn Pinholster habeas relief due to
ineffective assistance of counsel at the penalty phase of his 1984
trial and remanded for a new penalty trial. . . . U.S. District
Judge Gary L. Taylor of the Central District of California ruled in
2003 that Pinholster received ineffective assistance from appointed
trial lawyers Harry Brainard and Wilbur Dettmar, both now deceased,
but a divided Ninth Circuit panel reinstated the death penalty in
July 2008. . . . The panel ruled that while Dettmar and Brainard
might have conducted an inadequate investigation and failed to
present available mitigating evidence, a better defense would
probably not have resulted in a lesser sentence. . . . Judge Milan
D. Smith Jr., however, wrote yesterday that the California Supreme
Court was objectively unreasonable when it concluded that not a
single juror would have voted against the death penalty if counsel
had investigated and introduced readily available mitigating
evidence other than “inaccurate, damaging” testimony from
Pinholster’s mother.

12-10-09 --
A federal judge in Columbus wants lawyers to provide written
opinions about whether the state can try a second time to execute a
convicted killer. . . . U.S. District Judge Gregory L. Frost made it
clear in a hearing yesterday that his decision in the case of
53-year-old Romell Broom won't be based on the change in the way the
state carries out lethal injections. . . . He said a ruling Monday
by the 6th U.S. Circuit Court of Appeals that upheld the new method
makes questions about the old way -- used unsuccessfully on Broom in
September -- irrelevant. . . . "It seems to me that all that's left
is a legal argument as to whether the state can attempt to execute
Mr. Broom twice," Frost told attorneys for the state and Broom, who
was in court wearing an orange prison jumpsuit and shackles on his
wrists and ankles. . . . Broom's attorneys had suggested calling
witnesses to testify about the suffering he endured in the first
attempt, but Frost decided that written statements will be
sufficient.

12-09-09 --
Joseph Kindler, a notorious Northeast Philadelphia man convicted
of kidnapping and bashing an accomplice with a baseball bat and
drowning him in 1982, may die by injection after all. . . .
Yesterday, the U.S. Supreme Court overturned a lower-court
ruling that had thrown out the death sentence for Kindler, who
escaped from the Philadelphia Detention Center in 1984, was
caught in Quebec, and while awaiting extradition, escaped again
from a Montreal prison a year later. . . . On Sept. 6, 1988,
Kindler, then 30, was captured in St. John, New Brunswick, three
days after he was featured on "America's Most Wanted." . . . At
issue before the high court was whether a federal appellate
judge could disregard state procedural rules in a review of the
case. Attorneys general in Pennsylvania and 25 other states
joined the lawsuit.

12-08-09 --
On December 4, the New Hampshire Commission to Study the Death
Penalty held a hearing in Concord to examine the cost of the
death penaty in the state. The twenty-two member Commission, led
by retired Judge Walter Murphy, has been charged with
considering several issues, including whether the death penalty
is a deterrent, if it is arbitrarily applied, and if it covers
the appropriate crimes. The Commission is considering
alternatives to capital punishment and the related question of
whether the state spends more on a death penalty case than on a
first-degree homicide case resulting in a life sentence. The
state spent more than $5.3 million on two capital cases last
year, and has not had an execution since 1939. Deputy Attorney
General Orville Fitch told the committee that his office spent
$1.6 million while prosecuting Michael Addison, who was
ultimately sentenced to death. The state spent an additional
$1.2 million for the public defender who represented Addison, a
large sum when compared to the $70,000-$100,000 it costs to
defend a typical first-degree case. Fitch also testified that
his office spent $2.4 million prosecuting another defendant in a
murder-for-hire case, in which a life sentence was returned.

12-08-09
-- Trumbull County killer
Kenneth Biros this morning became the first person in the United
States to be executed using a one-drug lethal injection
protocol. . . . With his victim's family looking on, Biros, 51,
died at 11:47 a.m. in the Death House at the Southern Ohio
Correctional Facility near Lucasville following the intravenous
injection of single, large dose of thiopental sodium, a powerful
anesthetic. . . . "Now I am paroled to my Father in heaven, and
I will spend all my holidays with my Lord and Savior," Biros
said. "Peace be with you." . . . He said he was "sorry from the
bottom of my heart."

12-08-09 --
Franklin E. Zimring is a distinguished professor of law and
scholar at the Berkeley School of Law who has followed the
development of the modern death penalty over many decades.
Writing recently in the National Law Journal, Prof. Zimring said
the recent action by the American Law Institute to withdraw the
death penalty provisions from its Model Penal Code deprives the
punishment of any legal legitimacy. "[T]he institute has pulled
the intellectual rug out from under the current system of
deciding between life and death," he wrote. Recalling that when
the Supreme Court stopped the death penalty in Furman v. Georgia
in 1972, he noted many states turned to the Model Penal Code to
fashion new death penalty laws that the Court would accept. But
that model has now been discredited. "Now that the creators of
the modern system of death penalty sentencing have disowned that
system, there is no support for distinguishing the current death
penalty lottery from the lawless system that Furman condemned.
The apparatus that the Supreme Court rushed to embrace in 1976
has been exposed as a conspicuous failure."

12-07-09 --
INMATES COMMONLY challenge convictions or sentences based on
claims that they were saddled with bad lawyers. Just as common
are decisions by judges to deny such claims. So it is
extraordinary that last week a unanimous Supreme Court tossed
out a death sentence against a Florida inmate who made such an
argument. And no wonder. . . . George Porter Jr., a Korean War
veteran with two Purple Hearts, pleaded guilty to the murder of
a former girlfriend and her new boyfriend and was sentenced to
death in 1988. . . . The justices did not overturn the
convictions but lambasted the defense lawyer's failure to
introduce mitigating evidence -- including military service and
possible post-traumatic stress -- that could have led to a
reduced sentence. . . . Had Mr. Porter's counsel been
"effective," the justices wrote in the unsigned Nov. 30
opinion, the trial judge and jury would have learned
about the kind of "troubled history" that the court has
"declared relevant to assessing a defendant's moral culpability.
. . . They would have heard about (1) Porter's heroic military
service in two of the most critical -- and horrific -- battles
of the Korean War, (2) his struggles to regain normality upon
his return from war, (3) his childhood history of physical
abuse, and (4) his brain abnormality, difficulty reading and
writing, and limited schooling."

12-3-09 --
In the wake of the Supreme Court's refusal early Wednesday
morning to hear the last-minute appeal of a Tennessee death row
inmate, two justices clashed -- one with some bite -- over
whether execution after lengthy delay is cruel and unusual
punishment under the Eighth Amendment. . . . Tennessee executed
Cecil Johnson at 1:34 a.m. Wednesday. Johnson had spent nearly
29 years on death row for three murders committed during a
robbery of a Nashville convenience store. He was convicted in
1981. . . . A high court majority rejected his application for a
stay of execution and his petition for review in which he raised
the Eighth Amendment challenge. . . . Justice John Paul Stevens,
joined by Justice Stephen Breyer, dissented
(pdf), saying Johnson's situation was "as compelling a case" as
he had encountered raising the constitutional concerns that
Stevens himself raised in a 1995 dissent from another denial of
certiorari: Lackey v. Texas.

12-2-09 --
The original discarded verdict form signed by a 12-person DuPage
County jury called for Brian Dugan to be sentenced to life
imprisonment, not the death sentence he ultimately received. . .
. DuPage Judge George Bakalis told Dugan's defense attorneys
today that he had the original verdict form in his possession
and would give it to Illinois Supreme Court during the mandated
appeal of Dugan's death sentence if asked for it. . . . Dugan
defense attorney Steven Greenberg said the original verdict form
could form the basis for an appeal, and that the issue will
probably be brought up again when Dugan is formally sentenced
Dec. 16. . . . Last month's sentencing hearing was thrown into
some confusion when it was announced that jurors had reached a
decision. But the jury then restarted deliberations and
ultimately came back with a sentence of death. . . . Bakalis'
disclosure about the original signed form came in response to
questions from Greenberg, who filed a motion seeking
clarification as to what occurred after it was announced the
evening of Nov. 10 that the jury had reached a verdict after six
weeks of testimony.

12-2-09 --
David Martin is sickened by the suggestion that Texas executed
an innocent man when Cameron Todd Willingham
was put to death for setting a fire that killed his three
children. . . . The veteran defense attorney represented
Willingham at trial. He looked at all the evidence. And he has
no doubt that his client deserved to die. . . . "I never think
about him, but I do think about those year-old babies crawling
around in an inferno with their flesh melting off their bodies,"
Martin said. "I think that he was guilty, that he deserved death
and that he got death." . . . The 2004 execution, however,
didn't end questions about the case. Fire investigator experts
hired first by The Innocence Project
and later by the Texas Forensic Science
Commission
concluded the original finding of arson was seriously flawed.

12-2-09 --
The chief judge of the Texas Court of Criminal Appeals faced mounting criticism
and ethics charges over her refusal to accept a late emergency
death-penalty appeal two years ago. Now the lawyer who wanted to
keep the courthouse open to file the documents is facing
scrutiny for a second late appeal. . . . Lawyer David Dow criticized the chief judge,
Sharon Keller, in an op-ed written two years ago. Keller’s
decision was “typical of the arbitrariness and brazen disregard
for legal principle that characterizes most death penalty
cases,” he wrote. Keller is facing ethics charges
as a result of her refusal to accept the filing. . . . Now Dow
is in the news for a late filing in a different case, Texas Lawyer
reports. He was ordered to appear today with co-counsel
Katherine Black to explain an “untimely filing.” Dow and Black
work for the Texas Defender Service.

12-1-09 --
One of the most infamous days in the history of the Texas
judicial system occurred 10 years ago today. Timothy Cole died
an innocent man in a Texas prison cell. . . . An Army veteran
and college student who was pursuing the American dream ended up
living — and dying — an American nightmare. . . . This year, he
became the first person to be posthumously exonerated, thanks to
state District Judge Charlie Baird. . . . In many of the letters
Tim wrote from prison after being convicted of a rape he didn’t
commit, he mentioned three things that he longed for —
vindication, exoneration and a full pardon from the governor. .
. . The quest for the pardon continues. . . . On July 1, 2009,
Tim’s 49th birthday, Gov. Rick Perry said that he does not have
the power to pardon the dead. Perry said he needed a
constitutional amendment because of a several-decades-old
opinion from former state Attorney General Waggoner Carr that
prevents him from doing so. We await a modern opinion from the
current attorney general, Greg Abbott.

11-30-09 -- Returning from its Thanksgiving
break, the Supreme Court on Monday issued a powerful unsigned "per
curiam" opinion agreeing that the ineffective assistance of counsel
for Florida death row inmate George Porter Jr. prejudiced the
sentence he received after his murder trial in 1988. He was
convicted in the murder of a former girlfriend and her boyfriend.
The Florida Supreme Court and the 11th U.S. Circuit Court of Appeals
previously rejected his ineffective assistance claim. . . . Ruling
in Porter v. McCollum, available
here, the Court extensively detailed Porter's "horrible
family life" and his trying Korean War experiences that earned him
two Purple Hearts and other decorations -- none of which was told to
the trial court as mitigating evidence during sentencing. The trial
lawyer's failure to introduce the evidence "did not reflect
reasonable professional judgment" and could well have affected the
outcome of the case, the Court said.

11-30-09 -- Last week, the U.S. Supreme Court
issued a notable opinion in
Wong v. Belmontes, summarily reversing a divided panel
of (big surprise) the Ninth Circuit. . . . It’s notable for the sole
reason that this was the third time the Supreme Court had to take up
this case. Belmontes brutally bludgeoned a woman to death. His
reason? To steal and sell her stereo for the $100 he needed for beer
and drugs that night. . . . Justly sentenced to death, Belmontes has
been continually mollycoddled by “arch activist” Judge Stephen
Reinhardt. . . . Remarkably, Belmontes had coldly killed before, and
bragged about it. This third trip to the Supreme Court had to do
with his counsel’s successful efforts to keep that history from the
jury, and Reinhardt’s decision to recast the lawyer (for the first
time on a second remand), as somehow fatally ineffective for his
success. . . . Another case of an overturned judge conjuring into
being a new basis on remand to achieve his desired outcome. What do
you do with such a judge? Let him have his way lest he consume an
unfair share of your working life? Thankfully, the justices are
unwilling to allow that. Good for them. . . . The court rejected
Reinhardt’s latest freshly conceived and ridiculous basis for
granting Belmontes habeas relief—that trial counsel could have done
more to “humanize” that animal.

11-27-09 --
Christopher Slobogin, Professor of Law and Psychiatry at
Vanderbilt University, has written an evaluation of Florida's
death penalty to be published in a forthcoming edition of the
Elon University Law Review. The evaluation is based on a study
by an assessment team sponsored by the American Bar Association.
Florida is one of the leading states in sentencing people to
death, but it also has the most death row exonerations of any
state in the country. Florida was chosen by the ABA to be one
of eight death penalty states reviewed under its Death Penalty
Moratorium Implementation Project. The purpose of this project
was to allow states to identity and eliminate flaws in their
death penalty system. The Florida Assessment Team was led by
Prof. Slobogin and was instructed to investigate the following
aspects of death penalty administration: "police investigation
procedures; the use of DNA evidence; crime laboratories and
medical examiners; prosecutorial discretion; defense services;
jury instructions; the judicial role; the direct appeal process;
state post-conviction and federal habeas proceedings; clemency
proceedings; the treatment of racial and ethnic minorities; and
the treatment of people with mental illness and mental
retardation."

11-26-09 --
Kenneth Biros, who could become the first person in the United
States put to death using an untested lethal-injection method,
should not be subjected to state "experimentation," his attorney
says. . . . But the 6th U.S. Circuit Court of Appeals yesterday
cleared the way for his execution at 10 a.m. Dec. 8 in the Southern
Ohio Correctional Facility near Lucasville. . . . Biros, 51, of
Trumbull County, would be the first person put to death under a new
procedure using a single, large dose of thiopental sodium, a
powerful anesthetic. The successor to the old three-drug protocol
was announced Nov. 13 by Terry Collins, director of the Ohio
Department of Rehabilitation and Correction. . . . The one-drug
procedure is similar to the method used in euthanizing animals. . .
. Timothy Sweeney, Biros' Cleveland attorney, told The Dispatch that
the state should not make his client a guinea pig." . . . "There are
concerns," Sweeney said. "The protocol is new. It is completely
untested. It does not address … in any satisfactory way the issues
that arose during Romell Broom's execution using intravenous
needles. That hasn't changed.

11-25-09 --
In a decision that puts executions on hold, the Kentucky Supreme
Court ruled Wednesday that the state’s lethal injection procedure
must be spelled out in a regulation. . . . Among other things, that
process requires public comment. . . . The high court, in a 4-3
decision, held that that in certain instances — including
the protocol for the death penalty — a state agency must issue a
regulation in implementing a new law. . . . “This court cannot
ignore the publication and public hearing requirements set forth in
Kentucky statutes,” the majority opinion said. . . . The decision,
authored by Justice Lisabeth Hughes Abramson, directed the Kentucky
Department of Corrections “to adopt as an administrative regulation
all portions of the protocol implementing the lethal injection
statute. ...”

11-24-09 --
On November 23, Kentucky Public Advocate Ed Monahan and
Louisville Metro Chief Public Defender Dan Goyette called on the
governor and the state's Attorney General to stay all executions
until an assessment team formed by the American Bar Association
can objectively review the state's death penalty. Monahan and
Goyette wrote letters asking Attorney General Jack Conway not to
request any further execution warrants and asking Governor
Steven Beshear not to sign execution warrants until the ABA
Assessment Team has concluded its study and issued a final
report. . . . “There are serious and disturbing questions about
the convictions of a number of inmates facing execution,
particularly in those cases that were tried years ago by
unqualified lawyers lacking adequate resources,” Dan Goyette
said. “We should not proceed with executions until this
independent evaluation is completed and we are assured that due
process has been fully and properly provided in each and every
case. To do otherwise would cast significant doubt on the
fairness and propriety of imposing the ultimate punishment. We
all have a fundamental responsibility to avoid at all costs the
possibility of making an unjust and irreversible mistake.”

11-23-09
--James Tyrone Woodson's death
sentence was overturned by the U.S. Supreme Court in 1976
because the jury had not been allowed to consider any mitigating
factors in his life or about his peripheral role in the crime.
The Court not only rejected Woodson's death sentence, but held
that a mandatory death penalty system was unconstitutional.
Woodson had been convicted in 1974 of first-degree murder, which
was automatically punishable by the death penalty under North
Carolina law. Woodson had been in a car during the robbery and
murder, and he maintained that he was threatened to assist with
the robbery. Woodson and 120 other death row inmates' lives
were spared because of the Supreme Court ruling. He eventually
became eligible for parole and was released in 1993. Since his
release, Woodson has led a crime-free life. He used to be the
kitchen manager at the Raleigh Rescue Mission. He now has a job
in Raleigh and preaches at Wake Correctional Center. "You have
to want to change. Nobody can make you change," he said recently
about his work helping others. He continued, "There's a choice
in the matter in life itself. Do you want to live? Do you want
to be helpful to another individual because you've been helped?"

11-20-09 --The Last Lawyer: The Fight to Save Death Row Inmates is a book
by John Temple about the courageous work of a death penalty
defense attorney in the south. Ken Rose is an attorney at the
Center for Death Penalty Litigation in North Carolina. He has
handled many capital cases, but the focus of this book is his
defense of Bo Jones, a mentally handicapped farmhand convicted
of a murder that occurred in 1987 and sentenced to death. The
case highlights issues such as inadequate defense, mental
retardation, mental illness and witness testimony. Based on over
four years of behind-the-scenes reporting, The Last Lawyer tells
the story of how Rose's work eventually led to the dismissal of
all charges against Jones in 2008.

11-19-09 --
Virginia has not had a death verdict from a jury since March
2008, the longest stretch of time without a death verdict since
the death penalty was reinstated in the 1970s. Nationally,
there has also been a decline in death sentences: according to
the Bureau of Justice Statistics, there were 115 death sentences
in 2007, 65% less than the 326 that were handed down in 1995. In
Virginia, part of this decline might be attributed to a change
in state law made effective in 1995 that eliminated the
possibility of parole with a life sentence. Scott Sunby,
professor of law at Washington and Lee University, said he
believes that this decline can also be attributed to the rising
cost of winning death sentences, more effective defense lawyers,
and a dwindling public desire for capital punishment. (There are
currently 14 prisoners on Virginia's death row; in 1995 there
were 55 inmates on the row. Virginia is second to Texas in the
number of executions carried out since 1976.)

11-18-09 --
Death sentences have dropped significantly over the last few
years in Texas according to a study by the Fort Worth
Star-Telegram. The number of death sentences is at a 35-year low
as prosecutors have pushed for fewer death sentences and juries
have become less willing to impose them. Since 2005, defendants
may receive a sentence of life without parole instead of the
death penalty. Before this change, the only alternative to the
death penalty in Texas was a life sentence with eligiblity for
parole after 40 years, or even less in earlier years. Since the
introduction of life without parole, death sentences in Texas
have dropped 40 percent compared with the four years prior.
Texas had 13 death sentences in 2008, and 9 so far this year.
Ten years ago, Texas sentenced 47 defendants to death. . . . "With life without parole being
a viable option now, [juries] feel a lot more comfortable that
that person is not going to be let out back into society," said
Tarrant County District Attorney Joe Shannon. "We are probably
waiving the death penalty more times than we used to because
we’re trying to forecast the outcome of the case. . . .It
doesn’t translate to dollar bills. It translates into uses of
limited resources."

11-17-09 --
On November 16, the United States Supreme Court accepted for
review and handed down a per curiam decision in Wong v.
Belmontes (No. 08-1263). The Court reinstated Fernando
Belmontes' death sentence and overturned the decision of the
Ninth Circuit granting relief because of ineffectiveness of
counsel. Belmontes was sentenced to death for murdering a woman
during a robbery in 1981 in California. The appeals court ruled
in 2008 that Belmontes' lawyer had represented him incompetently
by neglecting to introduce evidence of family strife and
depression that would have likely led to a different sentence.
The Supreme Court assumed that the attorney should have
presented more evidence but concluded it would not have made any
difference in sentencing. Justice Stevens issued a concurring
opinion stating that he believed the Supreme Court had erred in
a previous consideration of this same case.

On the same day, the Court agreed to hear Magwood v. Culliver
(No. 09-158). Billy Joe Magwood received a death sentence for
killing a sheriff in 1979 in Alabama. At the time, Alabama law
required two conditions before the state could sentence a
defendant to death, only one of which was satisfied by Magwood's
crime. Magwood's death sentence was overturned on other grounds
in 1985, and he was resentenced to death the next year.
However, it was not until 1997 that Magwood's lawyers challenged
whether his crime was death-eligible under Alabama law. Alabama
claims Magwood took too long to raise this argument and his
appeal is barred by the Anti-terrorism and Effective Death
Penalty Act, which imposes strict limits on successive federal
habeas corpus petitions. The Eleventh Circuit agreed. Magwood
claims that he is bringing his claim under his new death
sentence and therefore is not barred by AEDPA.

11-17-09 -- A condemned killer who
prosecutors said had been faking mental illness to avoid
execution won a reprieve from a federal judge less than two
hours before he could have been taken to the Texas death chamber
Tuesday evening. . . . Gerald Eldridge, 45, was condemned for
the fatal shooting of his ex-girlfriend and her daughter nearly
17 years ago in Houston. Attorneys contended he was too mentally
ill to receive lethal injection and made those arguments in an
appeal to the courts. . . . U.S. District Judge Lee Rosenthal in
Houston agreed to delay the scheduled punishment for 90 days
after the Texas Court of Criminal Appeals had rejected the
appeal Monday. . . . Rosenthal said Eldridge's lawyers made a
"substantial threshold showing of insanity" and should be given
a hearing. The Supreme Court has ruled in previous cases that
mentally ill prisoners may be executed if they are aware of why
they are facing the punishment.

The
justices reverse an appeals court ruling, saying jurists wouldn't
have been swayed by Fernando Belmontes' tough childhood. Belmontes
beat a woman to death with a dumbbell to steal her stereo.

By David
G. Savage, Los Angeles Times

11-16-09 --
Reporting from Washington - The Supreme Court today for the third
time reversed the U.S. 9th Circuit Court of Appeals and restored a
death sentence for a California murderer who bludgeoned and killed a
young woman in 1981 to steal a stereo from her house. . . . In a
unanimous opinion, the justices rejected the notion that the
defendant's rights were violated by his lawyer's "ineffective
assistance of counsel." The appeals court ruled that the lawyer had
failed to stress that Fernando Belmontes had had a very difficult
childhood. . . . However, the justices said such testimony would not
likely have swayed the jury to spare Belmontes. They also said they
"simply cannot comprehend the assertion by the Court of Appeals that
this case did not involve 'needless suffering.' " The victim, Steacy
McConnell, had "her skull crushed by 15 to 20 blows from a steel
dumbbell bar" at the hands of Fernando Belmontes, the defendant. She
fought "a desperate struggle for life" but died hours later, the
court said.

It's a preferred method of
executing inmates, but so much can -- and has -- gone wrong that
states need to take a hard look at their procedures.

By
Miriam Aroni Krinsky, Los Angeles Times Opinion

11-16-09 --
It has been a year and a half since the Supreme Court ended the
nationwide moratorium on lethal injections, finding that
Kentucky's three-drug protocol had adequate safeguards to
protect inmates from "cruel and unusual" punishment. But in
California, executions remain on hold, as they have been for
more than three years. Some have urged the governor and others
to move things along. They point to executions without incident,
like Tuesday's of John Allen Muhammad in Virginia. But other
recent executions compel a contrary conclusion: We still haven't
found a way to get it right. . . . . The latest debacle came in
September, when Ohio botched its third lethal injection
execution in as many years. The saga began when corrections
officials could not find a vein during the execution of Romell
Broom. They tried for two hours, sticking Broom at least 18
times. The process got more macabre when the condemned man tried
to help his executioners, pumping his arm and pointing out
potential veins. The team of corrections officials finally gave
up, and Broom returned to death row.

11-16-09 --
Walla Walla County (Washington) Sheriff Mike Humphreys said the
death penalty does not deter homicides, and it may be time for
the public to reconsider the law: "At the time, (perpetrators do
not) think about [the death penalty]. They don't believe they're
going to get caught. And if they do get caught, there are a lot
of court proceedings making it likely (execution is) not going
to happen. . . . It's costing us this much money. Let the people
make that decision," he said. Humphreys agreed with a recent
(Death Penalty Information Center) survey of police chiefs who
rated reducing drug abuse as a better way of reducing crime. "If
we're going to reduce the drug abuse, we're going to reduce all
crimes. From theft to murder," he said. Police Chief Chuck
Fulton agreed with Humphreys that the death penalty is not a
deterrent and would prefer to see the practice abolished through
legislation. Fulton said the death penalty creates more victims
and the system results in a "'carnival atmosphere' that
adversely affects penitentiary workers, law enforcement officers
responsible for maintaining security, and every one else
involved." He said he understands the anger toward those who
commit murder but doubts that the death penalty is the answer
for society.

11-13-09 --
Self-proclaimed Sept. 11 mastermind
Khalid Sheikh Mohammed and four other Guantanamo Bay
detainees will be brought to trial in a civilian U.S. courthouse in
New York, near the site of the devastating 2001 terror attacks.
Prosecutors expect to seek the death penalty. . . . Attorney General
Eric Holder
announced the long-awaited and politically fraught decision
at a news conference Friday. He also said five other Guantanamo
detainees, including a major suspect in the bombing of the USS Cole,
Abd al-Rahim al-Nashiri, will be tried through the
military commission process. . . . Holder said the Sept. 11
defendants should be tried where their crimes occurred. Nearly 3,000
people died when the World Trade Center towers were brought down by
two hijacked jetliners, another hijacked jet hit the Pentagon and a
fourth crashed in the state of Pennsylvania.

11-13-09 --
On November 13, Ohio announced that it was adopting a
single-drug protocol for lethal injection, making it the first
state to embrace this change. Ohio will inject inmates with a
large dose of an anesthetic, thiopental sodium, which is
supposed to both render the inmate unconscious and eventually
cause death. The state also said it will employ a back-up method
of execution involving the injection of two anesthetic drugs
into the muscle of the defendant. In September, Ohio failed in
its execution of Romell Broom, halting the process after two
hours when guards could not find a suitable vein for the
injection. Subsequent executions were placed on hold as state
officials sought more effective ways of administering lethal
injection. The state had been having a hard time finding medical
personnel to consult with about lethal injection procedures
because of professional and ethical rules that generally
prohibit doctors, nurses and others from being involved in
capital punishment. Read the Associated Press article about this
development here:
Read more

11-12-09 --
The former director of Kentucky's courts recently recommended
that the state stop wasting money on the death penalty and
direct those resources where they are needed more. "We've got a
system in Kentucky where there's not enough money for public
advocates, for prosecutors, for drug courts, family courts, for
juvenile services, for rehabilitation programs, and we're using
the money we have in a way I think is unwise," said Jason Nemes,
former director of the state Administrative Office of the
Courts. "Every dollar that goes to our ineffective capital
punishment system is a dollar taken away from other needs. . .
The benefit to public safety is low. Are we really protecting
the public?" he asked. . . . In over 30 years, Kentucky has
carried out three executions. The state spends about $8 million
a year prosecuting, defending and incarcerating death row
inmates, according to an estimate by the state Department of
Public Advocacy. Critics of the death penalty question whether
this ineffective system is one the state can afford, especially
as state-ordered budget cuts are already affecting many aspects
of its judicial branch. Former Kentucky Supreme Court Chief
Justice Joseph Lambert agreed that death-penalty cases often
become "legal monsters," and that "it's impossible to streamline
death-penalty litigation to justify the cost, because doing so
would dramatically increase the risk of wrongful executions."

11-11-09 --
The Supreme Court this week, in an unsigned opinion, reversed relief
granted by the 6th U.S. Circuit Court of Appeals to a death row
inmate because of his lawyer's ineffective assistance. But Justice
Samuel Alito wrote separately -- and curiously -- to emphasize his
view that no "special relevance" should be given to the
American Bar Association's guidelines on the appointment
and performance of defense counsel in death penalty cases. . . . In
Bobby v. Van Hook, the justices found that, among the
6th Circuit panel's errors, was its reliance on ABA guidelines
announced 18 years after Robert Van Hook went to trial. . . . The
per curiam opinion said the Sixth Amendment entitled defendants to
representation that does not fall below an "objective standard of
reasonableness." Restatements of professional standards, the Court
added, can be useful guides as to what reasonableness entails, "but
only to the extent they describe the professional norms prevailing
when the representation took place."

11-11-09 --
An accused killer from Pike County has sat in jail for nearly four
years without a trial -- not because of any problems with the
evidence but because the state is seeking the death penalty and
cannot pay for the man's defense. . . . The case, argued Tuesday
before the Georgia Supreme Court, could determine whether Georgia
can afford the death penalty. . . . Jamie Ryan Weis, charged with
killing a Pike County woman during a 2006 house burglary, did not
have lawyers to defend him for more than two years because of money
woes plaguing the state public defender system.

11-10-09 --
A federal appeals court on Tuesday rejected another challenge to
Missouri’s execution procedures. . . . The challenge was filed by
eight death row inmates who accused the state of having a
“well-documented history of employing incompetent and unqualified
personnel” overseeing executions and insufficiently anesthetizing
inmates before their executions. The inmates claimed that Missouri’s
history would likely continue in the future. . . . U.S. District
Court Judge Fernando J. Gaitan Jr. granted Missouri’s motion for
summary judgment in the case in July of 2008. The prisoners
appealed. . . . On Tuesday a three-judge panel of the 8th U.S. Court
of Appeals said that Gaitan’s ruling was correct.

11-10-09 --
John A. Muhammad, whose murderous shooting spree in the fall of
2002 left at least 10 dead, was executed at a Virginia state
prison on Tuesday night. . . . The execution closed a case that
fixated the region ever since local residents were gunned down
while doing the most mundane tasks, like shopping or pumping
gas. . . . Mr. Muhammad, 48, was executed at the Greensville
Correctional Center. He offered no final words as he entered the
death chamber, and Larry Traylor, a prison official, said the
process had gone smoothly. Mr. Muhammad’s retained a calm
demeanor throughout, and once he was strapped to a gurney to
receive a lethal injection, he closed his eyes, Mr. Taylor said.
He was pronounced dead at 9:11 pm. . . . On Monday, the Supreme
Court refused to intervene in the case of Mr. Muhammad, 48, who
was sentenced to die for the killing of Dean H. Meyers, an
engineer who was shot in the head at a gasoline station in
Manassas, Va.

11-10-09 --
The Walla-Walla Union Bulletin is focusing on the state's death
penalty in a 4-part series entitled, "Executing Justice." The
series examines issues such as the costs of the death penalty,
arbitrariness, and the appeals process. Washington currently has
eight men on death row, and has not had an execution since 2001.
In almost 30 years, there has been only one non-consensual
execution. Four defendants have been executed since the death
penalty was reinstated in 1981, but three of the four defendants
waived their appeals. The paper cites a Washington State Bar
Association report noting that of the 270 convictions for
aggravated murder since 1981, the death penalty was sought 79
times, resulting in 30 death sentences. The majority of those
cases were overturned on appeal, and most of those reversals
resulted in life without parole sentences. The Bar Association
estimates that a death penalty case costs $754,000 more than
other murder cases, not including the $100,000 associated with
preparing for an execution.

11-9-09 --
The Supreme Court Monday denied John Allen Muhammad's request to
stay his execution, clearing the way for Virginia to put to death
the man who terrorized the Washington region as the Beltway Sniper.
. . . Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia
Sotomayor objected to the court's haste, saying it "highlights once
again the perversity of executing inmates before their appeals
process have been fully concluded." . . . Stevens, writing for the
three, said Virginia had short-circuited the process by scheduling
Muhammad's execution for Tuesday night, earlier than the court would
normally have reviewed his petition for the court to take his case.
. . . "By denying Muhammad's stay application, we have allowed
Virginia to truncate our deliberative process on a matter --
involving a death row inmate -- that demands the most careful
attention," Stevens wrote.

11-9-09 --
In a summary disposition, the U.S. Supreme Court has ruled a federal
appeals court should not have judged a murder defendant’s
representation based on ABA standards enacted 18 years after his
trial. . . . The U.S. Supreme Court ruled in the case of Robert Van
Hook, convicted of finding his murder victim at a Cincinnati bar
catering to gay men. Prosecutors had accused Van Hook of luring the
victim to his home, then strangling him and killing him with a
kitchen knife. Van Hook was convicted and sentenced to death. . . .
The Cincinnati-based 6th U.S. Circuit Court of Appeals had ruled
that Van Hook’s lawyers were ineffective in their investigation and
presentation of mitigation evidence during the sentencing phase of
his trial. The 6th Circuit relied on ABA guidelines for capital
cases passed in 2003 that expanded on 1980 standards broadly
outlining defense counsel’s duties in all criminal cases.

11-7-09 --
Kentucky is spending millions of dollars each year on a
capital-punishment system so ineffective that more death-row inmates
are dying of natural causes than are being executed. . . . Since the
death penalty was reinstated nationwide in 1976, Kentucky's trial
courts have sentenced 92 defendants to death. Only three have been
executed, compared to the five inmates who have died while their
cases were being appealed. . . . In fact, because of Kentucky's
ponderous system, more than one-third of the state's 36 current
death-row inmates — 13 in all — have been there at least two
decades. That's a higher percentage than in every other state except
Tennessee, Nevada and Idaho, according to an analysis of information
compiled by the federal Bureau of Justice Statistics.

11-6-09 --
A recent study of the military death penalty by Professor David
Baldus revealed disparities depending on whether the victim in
the underlying crime was also a member of the military or was a
civilian. The paper was co-authored by Professors Catherine
Grosso and George Woodworth and was published by the Michigan
State University College of Law. The authors note that despite
a 1984 executive order that "defined death eligible murder in
the armed forces principally in terms of civilian murder modeled
after state law systems," the military death penalty has been
implemented in such a way that shows a large disparity between
military murder and civilian murder. The study concluded that
soldiers who are accused of civilian murder were less likely to
face a capital court martial, to receive a capital conviction,
and to be sentenced to death than soldiers who were accused of a
military murder (murder of a commissioned or non-commissioned
officer). "In this process," the report said, "the military
death penalty has come to be used almost exclusively as a
disciplinary vehicle to protect the authority and effectiveness
of military command."

11-5-09 --
The Tennessee Law Review recently published a compilation of
articles and essays from its colloquium, "The Past, Present, and
Future of the Death Penalty," held in February 2009.
Contributors focused on issues that have influenced capital
punishment throughout the course of history. An article by Hugo
Adam Bedau, a prominent death penalty scholar, addresses the
issues of innocence and racial bias in the application of the
death penalty. Lyn Entzeroth focuses on whether mentally ill
defendants should be excluded from the death penalty, and asks
whether states should be allowed to forcibly medicate mentally
ill defendants in order to make them competent for execution.
The colloquium included a keynote address by Stephen Bright of
the Southern Center for Human Rights on representation, and
papers by Dwight Aarons, David Baldus, Julie Brain, Neil Weiner,
George Woodworth, John Blume, Sheri Lynn Johnson, Christopher
Seeds, Bradley MacLean, Judge Gilbert Merritt, Penny White, and
Pamela Wilkins.

11-4-09 --
A recent opinion piece by the Editorial Director of the
Clarion-Ledger in Mississippi points to the high costs of the
death penalty as a way in which arbitrariness enters into the
application of capital punishment: “When is a crime a crime
deserving of death?," David Hampton asks. "When the county can
afford it, of course.” The paper supports the death penalty but
the Editorial Director offered the example of Hinds County
District Attorney Robert Shuler Smith, who said his county
cannot afford to prosecute death penalty cases. The author
noted, “It's a matter of how much ‘justice‘ the county can
afford. But if one county can ‘afford‘ to send someone to death
row and another can't, isn't that another example of how
inequitable the death penalty can be?“ Hampton also cited
geographical location as contributing to the death penalty’s
arbitrary nature. “Ironically, it is very difficult to get a
death penalty jury sentence in Hinds County anyway. Prosecutors
have avoided seeking death for that reason. Yet, another jury in
a different county with a different racial or gender makeup
might not hesitate." The author concludes: "The death penalty
costs too much, literally and in many, many other ways." Read
in full by clicking here:
Read more

11-3-09 --
On November 10, the Georgia Supreme Court will hear arguments
from attorneys for a capital defendant, Jamie Weis, and from the
state concerning a three-and-a-half year delay in bringing his
case to trial. For two years of that delay, the Weis defense
team had no funding, and for 14 months he was completely without
representation. During this entire time, the state was staffed
and funded to prepare its prosecution of Weis. The Court will
decide whether Weis's constitutional right to a speedy trial was
violated and whether that requires a dismissal of charges, or at
least prevents the state from seeking the death penalty. Weis
was arrested and charged with murder in 2006. He was assigned
two attorneys, but because of a crisis in the state's indigent
defense system, they were forced to resign and were not
reassigned with pay until close to the trial date. Weis suffers
from psychosis, depression and anxiety, and has been detained in
a county jail. He has attempted suicide three times while
awaiting trial.

10-23-09 --
The University of Missouri-Kansas City Law Review recently
published a symposium issue of Death Penalty Stories,
highlighting the role of the narrative in the defense of death
penalty cases. The compilation includes contributions from
litigators who have used persuasive narrative in support of a
life sentence. Russell Stetler’s The Unknown Story of a
Motherless Child chronicles the case of Edgar H., who was
convicted of killing four men in California. Edgar’s traumatic
childhood was influential in negotiating a sentence of life
instead of death. Dr. Craig Haney’s article, On Mitigation as
Counter-Narrative: A Case Study of the Hidden Context of Prison
Violence, introduces the concept of the "master narrative," the
official story--often laden with inflammatory rhetoric--that
public officials supply to the media and that sets the stage for
a capital trial ending in a death sentence. Haney argues that
“more accurate information about the role of adverse social
histories and powerful social conditions" might lead to more
informed public debate over the utility of capital punishment.

10-22-09 --
A growing backlog of death penalty cases and delays in starting
trials in Arizona’s Maricopa County has forced Superior Court
judges to apply pressure on both sides by refusing to postpone
trial dates and demanding that attorneys discuss settlements.
The backlog came as a result of County Attorney Andrew Thomas’s
aggressive pursuit of death sentences in more than 120 cases
since taking office in 2005. The number of death penalty
defendants grew faster than the courts could handle them. Over
100 death penalty defendants are still awaiting trial in
Maricopa County, most of whom are beyond the 18-month time
period in which they are supposed to be tried. “I think firm
trial dates settle cases,” said Presiding Criminal Judge Gary
Donahoe. The pressure is apparently working. This year, Thomas
has allowed 27 defendants who faced the death penalty to plead
to life sentences or less – nearly twice as many as last year,
and eight times as many as in the year Thomas first took office.
There is a schedule to try to settle more than 20 cases before
the end of 2009. Thomas has also filed fewer notices of intent
to seek the death penalty.

10-21-09 --
Mark White, a former governor of Texas and strong supporter of
the death penalty, recently expressed serious reservations about
the practice in Texas. "There is a very strong case to be made
for a review of our death penalty statutes and even look at the
possibility of having life without parole so we don’t look up
one day and determine that we as the State of Texas have
executed someone who is in fact innocent," he said. White was
responding to concerns about the case of Cameron Willingham who
was executed in Texas in 2004 despite new evidence indicating
that the arson investigation that led to his conviction was
flawed. Texas' present governor, Rick Perry, recently dismissed
the chair and two members of a State Forensic Science Commission
that was scheduled to hear evidence regarding the case. Former
governor White said the case is one example “of why I think the
system is so unreliable.”

10-20-09 --
Scott Phillips, a professor in the Department of Sociology and
Criminology at the University of Denver, recently published a
study that revealed disparities in who receives the death
penalty inTexas. Phillips studied the 504 death penalty cases
that occurred between 1992 and 1999 in Harris County (Houston
and surrounding areas). Harris County is the largest
jurisdiction in the United States to use a court-appointment
system for selecting lawyers to defend indigent defendants.
Phillips’s research showed stark differences between the
defendants who were represented by hired counsel and those who
were not, regardless of their socio-economic status. His study
revealed that “those who can hire counsel for the entire case,
or even a portion of the case, appear to be treated in a
fundamentally different manner than those who cannot.” For the
504 death penalty cases examined, hiring counsel for the entire
case eliminated the chance of a death sentence and resulted in
more acquittals, and hiring counsel for at least a portion of
the case substantially reduced the chance of a death sentence.

10-19-09 --
In 1994, Mark McClain shot and killed the manager of a Domino’s
Pizza outlet in Augusta in a 2 a.m. robbery that yielded little
more than $100. . . . The next year, McClain was one of 55
people convicted in Georgia of committing a murder during an
armed robbery. . . . Prosecutors sought the death penalty
against 16 of those 55 killers and declined to seek it against
the rest. McClain was the only one sentenced to die. Friday, the
state Board of Pardons and Parole denied McClain clemency, and
he is scheduled for execution at 7 p.m. Tuesday. . . . In their
final appeals, McClain’s lawyers contend the condemned inmate’s
sentence was out of line when compared with those in similar
armed-robbery murders. . . . “Since Mr. McClain’s death sentence
was imposed, literally hundreds of defendants in similar cases —
and for the most part cases involving far more horrendous facts
— have escaped even the prospect of being sentenced to death
because prosecutors don’t seek it,” said Brian Kammer, one of
McClain’s lawyers.

10-18-09 --
Former Gov. Mark White, who was involved in the executions of 20
condemned criminals, says it may be time for Texas to do away
with the death penalty. . . . The death penalty is no longer a
deterrent to murder, and long stays for the condemned on death
row shows justice is not swift, White said. . . . More than
anything, he said, he has grown concerned that the system is not
administered fairly and that there are too many risks of
executing innocent people. . . . White said the state needs to
take a serious look at replacing the death penalty with life
without parole. . . . “There is a very strong case to be made
for a review of our death penalty statutes and even look at the
possibility of having life without parole so we don't look up
one day and determined that we as the state of Texas have
executed someone who is in fact innocent,” said White.

10-18-09 --
In nearly nine years as Texas governor, Rick Perry has never
spared a life based on a claim of innocence and only once
delayed an execution in such a case, according to a Chronicle
review of public records, clemency statistics and information
from the governor's office. . . . During that same period,
officials in other death penalty states granted clemency for
humanitarian reasons at least 200 times — 171 based on questions
of innocence in Illinois alone. . . . Texas has executed 200
convicts under Perry's watch, but he has spared just one
condemned man's life in a case in which he was not compelled to
do so by the U.S. Supreme Court. In that case, the inmate Perry
saved in 2007 was not a killer but the admitted driver of a
getaway car, condemned alongside the triggerman in a joint trial
under Texas' tough “law of parties.”

10-17-09 --
Debra Jean Milke has been sitting on Arizona’s death row for
nearly 20 years, largely because a police detective said she
confessed to plotting her 4-year-old son’s murder. . . . Now Ms.
Milke could get a new trial, and even her freedom, because the
detective skipped one of the most basic steps when officers
interview suspects — getting them to sign a Miranda waiver,
giving up their right to remain silent. . . . “You know, I have
never seen a case where there has been no signed Miranda
waiver,” said Judge Alex Kozinski of the United States Court of
Appeals for the Ninth Circuit, in San Francisco, at a hearing on
the case in August 2008.

10-16-09
-- Retired Federal
Appeals Court Judge H. Lee Sarokin recently offered a harsh
critique of the death penalty, especially challenging the
botched execution attempt of Romell Broom in Ohio in September.
Citing morality, arbitrariness, and the dim prospects of closure
for the murder victims’ families, Judge Sarokin called the
imposition of the death penalty an erratic and flawed process
that should not be permitted to continue. “The system is too
fraught with variables to survive. Whether or not one receives
the death penalty depends upon the discretion of the prosecutor
who initiates the proceeding, the competence of counsel who
represents the defendant, the race of the victim, the race of
the defendant, the make-up of the jury, the attitude of the
judge, and the attitude and make-up of the appellate courts that
review the verdict.“ . . . Regarding Ohio's lethal injection
process, Judge Sarokin said it would be unconstitutional to
subject the defendant to a second execution attempt: “It is
impossible to imagine what it must be like to know that you are
going to be put to death, have numerous efforts fail, and then
have to face the prospect again at a later date! If that isn't
cruel and unusual punishment, I do not know what is!“ He
continued, “Double jeopardy prohibits a person from being tried
twice for the same crime. Should it not protect a person from
being subjected to execution twice for the same crime?“ . . .
Click to read the entire article:
Read more

10-15-09 --
The latest Gallup Poll on the death penalty shows 65% of
Americans support the death penalty, significantly lower than
the 80% support recorded in 1994 and near the lowest support of
64% in the past 25 years recorded last year. Only 57% believe
the death penalty is fairly applied, and 59% of Americans
believe that an innocent person has been executed in the last
five years. Gallup reported that support for the death penalty
is lower if Americans are offered an explicit alternative, such
as life imprisonment with absolutely no possibility of parole.
The last time that Gallup offered such alternatives in 2006,
only 47% preferred the death penalty, while 48% supported life
imprisonment with no parole.

10-14-09 --
In a bizarre twist of fate, Mumia Abu-Jamal -- the convicted cop
killer whose quarter century on death row in Pennsylvania has
made him internationally famous -- may find that his very life
hinges on the outcome of a U.S. Supreme Court argument on
Tuesday in the case of a neo-Nazi triple murderer who wore a
Hitler mustache at trial as he testified proudly about his
desire to kill blacks, Jews and gays. . . . For Abu-Jamal, the
stakes couldn't be higher. And the worst-case scenario is that
the decision in the Ohio case, Smith v. Spisak, could directly
lead to a reinstatement of Abu-Jamal's death sentence. . . . But
the justices may never reach the legal issues that Abu-Jamal
shares with Frank Spisak, the neo-Nazi convicted in that case.
That could happen if the high court instead focuses entirely on
issues relating to whether Spisak's defense lawyer at trial
did such a poor job in
delivering his closing argument
in the death penalty phase that his death sentence cannot stand.

10-14-09 --
On October 13, the U.S. Supreme Court agreed to hear Holland v.
Florida, a case raising the question of "whether 'gross
negligence' by a state-appointed defense attorney in a death
penalty case provides a basis for extending the time to file a
federal habeas challenge, in a case where the habeas plea was
filed late despite repeated instructions from the client." (scotusblog.com).
In his petition for certiorari to the Court, the defendant
stated, "Despite the State of Florida's promise to Petitioner
that he have counsel to competently and effectively represent
him in both his state and federal postconviction litigation, a
promise that would be purportedly enforced by judicial
monitoring, Petitioner's state collateral attorney, Mr. Collins,
failed to timely file a (habeas corpus) §2254 petition on behalf
of Petitioner." The defendant then filed his own petition for
habeas corpus and, while admitting it was filed late, asked that
the deadline be extended because of the serious error by his
appointed attorney.

10-12-09 --
Lawyers for convicted cop-killer Mumia Abu-Jamal will be
watching closely on Tuesday when the U.S. Supreme Court takes up
an Ohio death penalty case because its outcome may very well
decide whether Abu-Jamal's death sentence will be reinstated. .
. . In April, Abu-Jamal lost his final appeal seeking a new
trial for the December 1981 murder of Philadelphia Police
Officer Daniel Faulkner when the justices refused to take up the issue
of whether blacks were unfairly excluded from the jury.
. . . But, at the time, the justices took no action on a
companion petition filed by the Philadelphia district attorney's
office demanding reinstatement of Abu-Jamal's death sentence
despite having discussed it weeks before. . . . Now it appears
certain that the high court has decided to hold the Philadelphia
prosecutors' petition in abeyance pending the outcome of
Smith v. Spisak -- an Ohio case that raises strikingly
similar issues to those in Abu-Jamal's case.

10-11-09 --
Since Maricopa County Attorney Andrew Thomas took office in
2005, he has asked for death sentences in murder cases more than
120 times - more than any other top prosecutor in Arizona
history. . . . His support of the death penalty is unwavering:
He has run for election and re-election on the pledge he will
continue to seek capital sentences. . . . Consequently, the
number of death-penalty defendants swelled faster than the court
system could handle. There just weren't enough judges,
prosecutors and qualified defense attorneys available. . . . At
the beginning of 2009, there were 129 defendants awaiting trial
in capital cases in Maricopa County, most of them years beyond
the 18-month time period in which, under court rules, they are
supposed to be tried. . . . But now, the number of capital cases
is being whittled down rapidly.

10-7-09 --
A recent op-ed in the Florida Times-Union pointed to continuing
problems in Florida’s death penalty system despite prior
recommendations for change in an American Bar Association report
three years ago. The article was written by Raoul Cantero III, a
former Florida Supreme Court justice appointed by Gov. Jeb Bush,
and Mark Schlakman, a senior program director for Florida State
University's Center for the Advancement of Human Rights. The
authors state that little has been done by either the state
government or the Florida Bar Association in response to the
ABA's findings. The ABA report addressed the often abysmal legal
representation of defendants in post-conviction proceedings,
socioeconomic and geographic bias in seeking the death penalty
versus a life sentence, and lack of fairness and accuracy in the
system. The authors note that these problems remain, but there
is a chance that new political leaders could still bring about
change: "The challenge for those who hold and aspire to elected
office is to ensure that personal perspectives pertaining to
capital punishment, and the public outrage arising out of
heinous crimes, do not overshadow the fact that Florida's death
penalty process is fraught with problems. Floridians expect a
system of justice that engenders confidence based upon fairness
and accuracy. With regard to the state's death penalty process,
in many respects that standard has proven to be elusive."

10-5-09 --
Lawrence Reynolds, who was scheduled to be executed on October 8
in Ohio, received a stay today (Oct. 5) from the U.S. Court of
Appeals for the Sixth Circuit. The court's stay was based on
unresolved issues in Ohio's lethal injection protocol that were
brought to the surface by the unsuccessful execution of Romell
Broom on September 15. The majority wrote: "These disturbing
issues give rise to at least two questions: first, whether Ohio
is fully and competently adhering to the Ohio lethal injection
protocol given (a) their failure to have a contingency plan in
place should peripheral vein access be impossible, (b) issues
related to the competence of the lethal injection team, and (c)
other potential deficiencies; and second, whether these
instances present sufficient new, additional factors to revive
Reynolds’ Eighth Amendment claims otherwise extinguished by
Cooey II (an earlier lethal injection challenge).”

10-5-09 --
The Ohio Attorney General's Office will ask the U.S. Supreme
Court to overturn today's appellate court ruling that placed a
stay on Thursday's scheduled execution of Lawrence Reynolds. . .
. The Cincinnati-based 6th U.S. Circuit Court of Appeals, in a
2-1 decision, ordered the stay while citing last month's aborted
execution of an inmate from Cleveland. . . . Reynolds, from
Cuyahoga Falls, was sentenced to die for the 1994 robbery and
strangulation death of his neighbor, Loretta Mae Foster, 67. . .
. His attorneys had filed appeals in recent weeks, arguing that
Ohio's lethal injection process is flawed.

10-1-09 --
On September 30, Texas Governor Rick Perry replaced the chairman
and two members of a state commission that is investigating
whether inaccurate evidence of arson was presented at the trial
of Cameron Todd Willingham, who was executed in 2004. The
state’s Forensic Science Commission was scheduled to conduct a
public hearing in two days and receive testimony from Craig
Beyler, a nationally known expert who called the Willingham
investigation “slipshod,” and concluded that “almost all of the
evidence presented [w]as based on junk science.” Beyler's report
for the Commission concluded that “no credible evidence existed
to believe that the fire, that killed three children, was caused
by arson.”

9-30-09 --
A new database of death row prisoners in the U.S. is now
available on DPIC's Web site. The database contains current
sortable and searchable information on death row inmates in each
state, including their name, race, county, and date of birth.
The information in the database is also editable, meaning that
individuals with knowledge of death row inmates may change or
add new information. This new database may be a useful tool in
exploring how the death penalty is applied. Click
here to access the database.

9-29-09 --
Todd Snider, the father of Zachary Snider, who was killed at age
10 by Christopher Stevens in Indiana, accepted final resolution
of the case against Stevens when a settlement was reached for a
sentence of life without parole. “Our family has suffered enough
and would like for this to be resolved once and for all," Mr.
Snider said about the life sentence. "This will give our family
finality. Chris Stevens will die in prison and will never have
the opportunity to destroy people's lives again." The 1993
murder led to the passage of Zachary’s Law, creating Indiana's
sex offender registry. Stevens was originally sentenced to
death, but the sentence was overturned in 2007 because Stevens'
attorneys had not adequately presented evidence of the
defendant's mental illness. Putnam County Prosecutor Tim
Bookwalter said he “believe[s] it was probable that another jury
would have given Mr. Stevens the death penalty, but it would
have caused the Sniders to go through a lengthy jury trial, and
then if convicted, a new set of appeals could have gone on
another 10 years. With the plea, this case is over. There are no
more appeals and the Sniders should never have to deal with
Stevens again." .

9-28-09 --
In an editorial on September 28 in the New York Times, the paper
called the death penalty "an economic drain on governments with
already badly depleted budgets." Citing figures from the Death
Penalty Information Center, the Times noted that "States waste
millions of dollars on winning death penalty verdicts, which
require an expensive second trial, new witnesses and long jury
selections. Death rows require extra security and maintenance
costs." The editors remarked that some states have begun
reconsidering whether the death penalty is worth its exorbitant
costs, especially since the money spent could be used instead on
“police officers, courts, public defenders, legal service
agencies and prison cells.” The editorial was discussed on
Daily Kos. The entire editorial can be read below:

9-27-09 --
Japan, the only other industrialized democracy apart from the
United States that still practices the death penalty, may see a
halt to executions with the recent appointment of Keiko Chiba as
justice minister. Chiba, a lawyer and active death penalty
abolitionist for the past 20 years, would have to provide the
final signature for an execution to occur.

9-25-09 --
John Diaz, the editorial page editor of the San Francisco
Chronicle, recently questioned the wisdom of spending hundreds
of millions of dollars on the death penalty in California. Diaz
pointed to the enormous expense of maintaining capital
punishment in the state: "Today, California has nearly 700
inmates on death row, more than any other state, with their
cases in varying levels of appeal. The housing of an inmate on
death row is more than triple the $40,000 annual cost of
incarcerating others. This state is contemplating a new, $400
million death row. And none of this includes the legal bills for
the trials and appeals that are - by constitutional right - more
exhaustive in capital cases." He called for an open debate, “At
some point, California needs to have a forthright debate about
the cost and efficacy of the death penalty. That moment,” he
wrote alluding to upcoming elections, “maybe coming in 2010.” He
noted that executions are too rare in California to be a
plausible deterrent. The percentage of Californians who believe
the death penalty is a deterrent has dropped from 79% to 44% in
the last twenty years.

9-23-09 --
In March of this year, New Mexico repealed the death penalty,
becoming the fifteenth state to abolish the practice. The law,
however, is not retroactive, and does not affect two inmates
currently on death row as well as any defendant sentenced to
death for crimes committed before the law was to take effect in
July 2009. One of the legislators who voted to end the death
penalty, partly because of its high costs, was Republican
gubernatorial candidate Rep. Janice Arnold-Jones, who also voted
to repeal the death penalty in 2007. Arnold-Jones recently said
she “would consider commuting sentences of the two men on death
row and any others who may join them.” She continued, “[T]he
biggest reason that I couldn't sustain the death penalty any
longer is it's not working. It is fraught with so many issues,
so much cost and it bogs down our system. It's just not
working.“

A lethal-injection team tried for
about two hours to find a usable vein, then gave up. Romell
Broom, a convicted rapist-murderer, says another try would be
unconstitutional.

By
Carol J. Williams, Los Angeles Times

9-19-09 --
As executioners poked his limbs with an IV needle, Romell Broom
initially tried to speed along his own demise, flexing his arm
and tugging on a rubber tourniquet to better expose a vein on
the inside of his elbow. . . . But as prison workers repeatedly
failed to find a vein strong enough to take the lethal
injections, the convicted rapist-murderer began to despair over
his protracted end. Witnesses and the execution-team log from
Tuesday describe how the 53-year-old winced and cried as a shunt
inserted in his leg also failed to open a pathway for the fatal
drugs. . . . Two hours and 23 minutes after it started, Ohio
Gov. Ted Strickland halted the execution and scheduled a second
attempt for a week later. . . . The aborted execution has
renewed concerns about lethal injection, and raises the question
of whether a second execution attempt would violate the 8th
Amendment prohibition of cruel and unusual punishment.

9-18-09 --
A federal appellate court has rejected condemned inmate Linda
Anita Carty's bid for a new trial, keeping her on Texas' death
row for killing a Houston mother and kidnapping the slain
woman's 4-day-old baby. . . . The 5th U.S. Circuit Court of
Appeals ruled late Thursday that a district court did not err in
denying a new trial for Carty, a 50-year-old grandmother and a
native of the British Virgin Islands. . . . Carty's attorneys,
who handled her appeal for free at the request of the British
government, argued her former lawyers provided ineffective
counsel at her trial and said the Harris County jury that
convicted her might have sentenced her to life in prison had
they been given a more complete portrait of her character. . . .
The Texas Attorney General's Office disagreed. A Harris County
prosecutor applauded the higher court's decision.

9-17-09 --
In The partial timeline below of the attempted execution of
Romell Broom in Ohio on Sept. 15 was compiled by the Cleveland
Plain Dealer, Sept. 17, 2009; reporter Peter Krouse. The entire
timeline can found by clicking
here.

9-16-09 --
Newcastle’s Paul Comiskey is hoping a small pamphlet will have a
big impact on people’s views regarding the death penalty. . . .
The retired defense attorney and former Jesuit priest authored
“A Taxpayers Guide to the California Death Penalty” and has
co-published an initial print run of 10,000 copies. . . .
Comiskey has been handing the pamphlets out over the summer and
encouraging people to read them. . . . Sometimes, he noted, they
hand them back. . . . Comiskey is an unabashed death penalty
opponent – something he says he has been since he was old enough
to formulate an opinion on capital punishment. It’s expensive
for taxpayers during a time when government spending is being
questioned, it hurts rather than helps the families of victims
and it perpetuates prejudices against blacks, he said.

9-16-09 --
More information is being reported about the botched
execution-attempt of Romell Broom yesterday (Sept. 15) in Ohio.
According to the Associated Press, the correctional officers
encountered so much difficulty in finding a suitable vein for
the lethal injection that, after an hour, Broom attempted to
assist them by moving on his side, sliding the rubber tubing up
and down his arm, and flexing his fingers. A vein was found,
but it collapsed as the technicians inserted a saline solution.
Broom’s assistance did not help, and he turned on his back and
covered his face with both hands. He appeared to be in distress
and wiped his eyes. One of the execution team handed him a roll
of toilet paper, which he used. The executioners attempted to
use the veins in his legs and he grimaced. One of the team
patted him on his back. Finally, the executions gave up their
attempts, indicating they needed a break.

9-16-09 --
For two hours Tuesday afternoon at a prison in Lucasville, Ohio,
while the rest of us were at work or school or home, Romell
Broom's team of executioners worked to find a usable vein which
would deliver the lethal injections designed to stop his heart
and end his life. First they tried his arms. Then they tried his
legs. Broom himself, a convicted rapist and murderer, even tried
to help at one point, flexing his hand and fingers while lying
on his side. He grimaced. He wiped his brow. Nothing worked. His
veins simply wouldn't hold up. . . . Eventually, long after
Broom was supposed to be dead, the prison director and execution
team gave up. They called the governor and asked for a reprieve.
The governor relented and now Broom sits in legal limbo, waiting
evidently not just for some medical procedure that would free
him up to be put to death but also for some guidance
from the state and federal courts about whether it now would
amount to "cruel and unusual" punishment to execute him at all
under Ohio's evolving (but clearly still troubled) lethal
injection protocols. . . . The grisly details
surrounding Broom's failed execution—which read like an outtake
from the movie "The
Green Mile" or a
transcript from a torture probe-- remind us that the United
States Supreme Court did not come remotely close last year to
fixing the many problems that still surround lethal injection in
America. It's true that the Justices upheld
Kentucky's lethal injection procedures. But those measures are
different from the procedures in place in Ohio, a state that
consistently has had problems
over the past few years ensuring that its executions are swift
and humane.

9-16-09 --
The question of whether a romantic relationship between a judge
and prosecutor is unfair won’t be decided by the Texas Court of
Criminal Appeals. . . . The issue in the capital case of Charles
Dean Hood roiled the legal community last summer, but the Court
ruled Wednesday it would not consider the issue because defense
attorneys did not raise it initially. . . . Defense attorney
David Dow called the decision by Texas’ highest criminal court
“gutless.” . . . “The question of whether there is a fundamental
taint to this trial is, at this point, going to be decided by a
federal court — if it’s going to be decided by any court at all
— because what the state court has said is, ‘We don’t care,’”
said Dow, litigation director for the Texas Defender Service.

9-15-09 --
A former prosecutor said Tuesday that a federal judge's decision
to overturn the conviction and death penalty of a man who was
found guilty of murdering two followers of the Grateful Dead
band at a homeless encampment in Berkeley in 1985 was "an abuse
of judicial discretion." . . . Former Alameda County Assistant
District Attorney James Anderson, who prosecuted Ralph
International Thomas in 1986 for the August 1985 murders of Mary
Gioia, 22, and Greg Kniffin, 18, said the Sept. 9 ruling by U.S.
District Court Judge Marilyn Patel was "an outrageous bit of
judicial jokery." . . . But Thomas's appellate lawyer, A. J.
Kutchins, said, "It is wonderful that after all of these years,
the court has recognized that Mr. Thomas did not get a fair
trial." . . . Patel ruled that Thomas was denied a fair trial
because his defense lawyer was incompetent and failed to locate
witnesses who would have pointed to another resident of the
encampment as a possible suspect.

9-9-09 --A
recent article in the Fayetteville Observer in North Carolina
captures the poignant story of one man's life on death row.
James Floyd Davis is a Vietnam veteran who lashed out with a
burst of violence fourteen years ago, killing three people
including his boss who had fired him a few days before. He
suffers from mental illness and post-traumatic stress disorder.
Through the intervention of a therapist who also served in
Vietnam, it was learned that Davis was entitled to a Purple
Heart and other medals earned during his service. The army
agreed to award him the medals and the prison eventually agreed
to let him receive them. The reporter, Chick Jacobs, sums up
the story this way: "This is a story of how one veteran, wounded
in body and spirit, reached into the demon-filled darkness of a
fellow veteran who lost his way long ago. It's the unlikely tale
of how a medal earned in one horror helped bring a touch of
humanity to another."

9-8-09 --
In 2004
Cameron Todd Willingham was executed in Texas for
murdering his children by arson. Since then, numerous forensic
fire experts have concluded that the evidence of arson presented
at Willingham's trial could not support the conclusion that he
caused the fire. That same year,
Ernest Willis was freed from death row in Texas after
the prosecution concluded that his conviction and death sentence
for arson were mistaken. Texas has 742 offenders in state
prisons for arson, and about 275 more defendants are convicted
of the crime each year. Sen. Rodney Ellis, D-Houston, who has
pushed to create a commission in Texas to explore questionable
convictions, noted, "As scientific methods improve," he said,
"it's a distinct possibility that we're going to find more
problems in the criminal justice system." One of the experts
who examined the evidence in the Willingham case and disputes
the claims of arson is Gerald Hurst, a Cambridge-educated
chemist, who said, "Accidental fires being turned into arsons is
going on all the time." He believes the core of the problem is
that investigators – most of whom began as police officers and
firefighters – have no science background.

9-4-09 -- Acclaimed artist Robert Priseman
has assembled some of his drawings of execution chambers with
essays on the death penalty into a new book entitled "No
Human Way to Kill." The essays include the story of a
mother whose daughter was murdered, a death row inmate's diary,
and an interview with Jim Willett, former warden of the prison
where Texas executions are held. Death penalty attorney Clive
Stafford Smith writes in review, "The etchings and accounts
offer up a strange and original contemplation on a subject which
stretches back far, far too long."

9-3-09 -- Former death row inmate Michael
Toney was freed from prison in Texas on September 2 after the
state's Attorney General asked that his death sentence and
criminal charges be dismissed. Toney was sentenced to death for
a fatal bombing in 1985 that occurred at a trailer park in Lake
Worth. He has always maintained his innocence, and there was no
physical evidence leading to his conviction. His conviction and
death sentence were overturned by the Texas Court of Criminal
Appeals nine months ago after it was revealed that the state had
withheld critical evidence that might have led the jury to a
different conclusion at his trial in 1999. The attorney general
took over the case after the Tarrant County district attorney's
office recused itself in January because of the withheld
evidence.

9-3-09 -- Recent scientific reports
indicating that Texas likely executed an innocent man have
spurred wide coverage and commentary. Cameron Todd Willingham
was executed in 2004 for the arson murder of his three
children. Fire experts now say the blaze was likely an
accident. Excerpts from coverage: . . . New York Times
Editorial, August 31, 2009, "Questions About an
Execution": . . . People should have no illusions about the
brutal injustice of the death penalty after all of the
exonerations in recent years from DNA evidence, but the case of
Cameron Todd Willingham is still shocking. . . . Mr. Willingham
was executed for setting a fire that killed his 2-year-old
daughter and 1-year-old twins, but a fire expert hired by the
State of Texas has issued a report casting enormous doubt on
whether the fire was arson at all. The Willingham investigation,
which is continuing, is further evidence that the criminal
justice system is far too flawed to justify imposing a death
penalty. . . . . . .The commission is to be commended for
conducting this inquiry, but it is outrageous that Texas is
conducting its careful, highly skilled investigation after Mr.
Willingham has been executed, rather than before.

A survey shows public support has
dropped from 79% to 66%, as fears of executing the wrongly
convicted escalate.

By
Carol J. Williams, The Los Angeles Times

9-2-09 --
A majority of Californians still favor the death penalty, but
their support has waned from 79% to 66% over the last two
decades as fears of executing the wrongly convicted escalate, a
researcher reported Tuesday. . . . The survey conducted by Craig
Haney, a UC Santa Cruz psychology professor and lawyer, also
showed that most Californians erroneously believe that it costs
taxpayers less to execute condemned prisoners than to keep them
locked up for life. . . . In California, it costs $138,000 a
year to incarcerate each of San Quentin State Prison's 685 death
row inmates, nearly three times the non-capital inmate cost,
according to the state Department of Corrections and
Rehabilitation. The average stay on death row is 25 years and
growing as legal challenges have kept executions on hold for 3
1/2 years and limited the number to 13 since capital punishment
was restored in 1976. . . . "My sense is that the whole issue of
the death penalty is much more unsettled now than it has been in
the past 20 or so years," said Haney, citing growing public
discomfort with incidents in which innocent prisoners have been
spared at the last minute -- or not at all.

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8-31-09 -- In a thorough and penetrating
article published in The New Yorker on August 31, David Grann
offers further evidence that Texas probably executed an innocent
man in 2004. Grann carefully examines all the evidence that was
used in the two-day trial in 1992 to convict Cameron Todd
Willingham of murder by arson of his three young children. It
is now well established through a series of investigations by
other fire experts that the forensic evidence of arson presented
at trial had no scientific basis and should not have led to
Willingham's conviction. Another piece of evidence used at
trial was the testimony of a jailhouse informant who said that
Willingham had confessed to the crime, despite the fact that he
had always maintained his innocence and even refused a plea
bargain to avoid the death penalty. The informer eventually
received early release, tried to recant his testimony, and is
now no longer sure what he heard. He also suffers from mental
disorders. Willingham's lawyers thought he was 100% guilty and
offered no rebuttal expert to question the finding of arson. At
the sentencing hearing, the prosecution put on a psychiatrist,
Dr. James Grigson, who made a living helping to send defendants
to death row by testifying to their future dangerousness without
even interviewing them. Dr. Grigson said that Willingham was an
"extremely severe sociopath," words similar to those he used to
describe Randall Dale Adams, who was eventually exonerated
following an investigation by documentary filmmaker Errol
Morris, portrayed in the film "A Thin Blue Line."

8-31-09 --
In granting a death row inmate a second mental disability
hearing, the Mississippi Supreme Court made clear that it
thought the inmate's former attorney failed to provide proper
representation. . . . In 2003, Howard Dean Goodin persuaded the
Supreme Court that his mental disability claims and his
attorney's failure to pursue competency issues justified further
judicial review. . . . Circuit Judge Marcus Gordon, after a
hearing in Newton County, denied Goodin's post-conviction
petition. . . . In a post-conviction petition, an inmate argues
he has found new evidence -- or a possible constitutional issue
-- that could persuade a court to order a new trial. . . .
Goodin was being represented by the Mississippi Office of
Capital Post-Conviction Counsel and its director, Robert Ryan.
Between the time Gordon heard the mental disability arguments
and the case got back to the Supreme Court, Ryan was gone, the
Office of Capital Post-Conviction Counsel had reorganized and
Goodin had a new lawyer.

8-28-09 -- Probably the most complete
collection of information on executions carried out in the
United States from colonial times to the modern era was
assembled by Watt Espy of Headland, Alabama. Espy died on
August 13, 2009 at age 76, but his files and catalog of
executions was preserved and transformed over the years into a
searchable database by friends and scholars who appreciated his
work. Much of his archive is now located at the State
University of New York at Albany. DPIC has information from this
database on our Espy File
page. In addition to a downloadable Excel file of Espy's
catalog of executions, DPIC offers three pdf files that can be
viewed online, containing information on over 15,000 executions
sorted by date of execution, state, and alphabetically by
defendant's name.

8-26-09 -- In all states that use the death
penalty, there are provisions for sentencing inmates to the
alternative sentence of life without parole (LWOP). Prior to
the U.S. Supreme Court's ruling in Simmons v. South Carolina
(1994), some states with LWOP did not inform the jury of this
alternative even when so requested by the defense. Today,
states apply a variety of conditions and use differing
instructions to inform the jury about this alternative
sentence. Opinion polls and surveys of capital jurors have
shown how important this alternative is in death penalty cases.
Thanks to the research of Emma Reynolds of Drexel Law School and
Intern at the Philadelphia Federal Defender, Capital Habeas
Unit, we are able to offer a summary of how states handle this
key issue. Her paper, "Survey of Life Without Parole
Instructions in Death Penalty States," provides the relevant
statute and information about jury instructions in each death
penalty state. As with any legal research, it would be
important to research any changes in the law before using this
information (e.g., New Mexico has now abolished the death
penalty and replaced the sentence with LWOP). The table of
statutes and instructions is provided in both pdf and Excel
format:

8-25-09 -- According to the Chicago
Tribune, the Texas Forensic Science Commission has received a
report from a nationally known fire scientist that casts doubt
on the guilt of Cameron Todd Willingham (pictured) who was
executed in Texas in February 2004. Craig Beyler of Hughes
Associates conducted a review for the Commission of the evidence
used to convict Willingham of murder by arson, which led to his
death sentence. Beyler concluded the Texas fire investigators
had no basis to rule that a deadly house fire that killed
Willingham's children was an arson. His report mirrors what
other renowned experts have found over the past several years
and is one step in a more thorough review being conducted by the
Science Commission. Experts for the Chicago Tribune and the
Innocence Project in New York have similarly concluded that the
original investigators relied on outdated theories in calling
the fire an arson.

8-19-09 -- Dr. Allen Ault was the warden at
the maximum security prison in Georgia where executions were
carried out. He also served as Commissioner of Corrections
during a lifetime career in the field. He is currently the Dean
of the College of Justice & Safety at Eastern Kentucky
University. In the
video accompanying this note, Dean Ault discusses the
tremendous drain that carrying out executions had, and continues
to have, on his life. He added, "I know I'm not the only one
who has administered executions that felt the way I do. They
all have shed a lot of tears." He questions the value of the
death penalty, and recognizes the difficulty that many
politicians have in challenging this punishment, despite its
obvious flaws. With respect to deterrence, he said, "I have a
hard time believing that using pre-meditated murder and violence
(executions), is a way to model behavior that would deter
somebody else from doing it." The video was made at the end of
a six-week course on the death penalty at EKU and contains
answers to questions that the students raised. To view the
video (21 minutes),
click here.

Books: A Life for a Life--The American Debate Over the
Death Penalty

Death Penalty Information Org.

8-18-09 -- In the book, A Life for a Life: The American
Debate Over the Death Penalty,
author Michael Dow Burkhead, a psychologist who has worked with
criminal offenders for 25 years, explores the various trends in
public opinion that influence crime prevention efforts, create
public policy, and reform criminal law. He examines eight core
issues about the use of executions: cruel and unusual
punishment, discrimination, deterrence, due process,
culpability, scripture, innocence, and justice. The book
provides a brief history of capital punishment in the United
States from the earliest known execution in1608 to the present
time. Additional topics include the regionalization of capital
punishment sentences, the spiritual and scriptural debate over
the death penalty, the role of DNA evidence in modern death
sentences, and the ongoing effects recent court rulings. The
appendix includes recent state commission reports on the death
penalty from Maryland, California, New Jersey, and Tennessee.

8-17-09 -- On August 17 the United States
Supreme Court ordered a new evidentiary hearing for Georgia
death row inmate Troy Davis, whose case has drawn worldwide
attention because of new evidence of his possible innocence. For
the first time in nearly 50 years, the Court has favorably
responded to a petition directed to them, rather than as an
appeal from other courts. With only two Justices writing in
dissent, the Court ordered the lower federal court to hear
Davis' evidence: "The District Court should receive testimony
and make findings of fact as to whether evidence that could not
have been obtained at the time of trial clearly establishes
petitioner’s innocence." . . . Since Davis' initial conviction
in 1991, seven of nine eyewitnesses against him have recanted
their testimony. Justice Stevens, concurring with Justices
Breyer and Ginsburg, wrote, "The substantial risk of putting an
innocent man to death clearly provides an adequate justification
for holding an evidentiary hearing." He further responded to
Justice Scalia's dissent, which would have denied Davis' request
on narrow legal grounds, by strongly rejecting the notion that
the law allows the execution of an innocent person: "[I]magine a
petitioner in Davis’s situation who possesses new evidence
conclusively and definitively proving, beyond any scintilla of
doubt, that he is an innocent man. The dissent’s reasoning would
allow such a petitioner to be put to death nonetheless. The
Court correctly refuses to endorse such reasoning." An amicus
brief had been filed on behalf of Davis by former members of the
judiciary and law enforcement officials, including former
Georgia Congressman Bob Barr and the former director of the FBI
William S. Sessions.

8-17-09 --
A death-row inmate who claims the Eighth Amendment bars his
execution because he is innocent of the crime will get a hearing
before a federal district judge, thanks to intervention by the
U.S. Supreme Court. . . . In an unusual order issued today, the
U.S. Supreme Court told a Georgia federal judge to hear the
claim of actual innocence by Troy Anthony Davis, SCOTUSblog reports. The
U.S. Supreme Court had denied cert
in Davis’ case in October. Seven of nine witnesses at Davis’
trial for killing a police officer have recanted their
testimony, and the case has attracted international attention. .
. . Justices Antonin Scalia and John Paul Stevens issued dueling
opinions on the propriety of the order, the Atlanta Journal-Constitution
reports. Scalia, joined by Justice Clarence Thomas, argued in a
dissent that the federal judge won’t be able to grant relief
under a 1996 law restricting habeas review of state convictions.

8-13-09 -- It took just 80
words for a federal appeals court to deny Kevin Cooper’s most
recent plea to avoid execution. But attached to that order was a
forceful 101-page dissent
by a judge, all but pleading to spare Mr. Cooper’s life. . . .
The State of California may be about to execute an innocent
man,” it began. . . . The judge who wrote the dissent, William
A. Fletcher of the United States Court of Appeals for the Ninth
Circuit, in San Francisco, argued that the police and
prosecutors had withheld and tampered with evidence in the case
for decades; Judge Fletcher even accused the district court of
having sabotaged the case. . . . Compared with the dry, mannerly
prose found in many opinions, Judge Fletcher’s passion in Cooper
v. Brown is startling. But these kinds of fervent, lonely
dissents, urging that a prisoner’s life be spared, have
noticeably increased in the last decade, compared with previous
years, according to a review of death penalty opinions by The
New York Times, as confirmed by experts in the field.

8-11-09 -- Governor Beverly Purdue of North
Carolina signed the state's Racial Justice Act into law on
August 11, concluding a long period of legislative action
surrounding this death penalty statute. Gov. Purdue said in a
news release, "I have always been a supporter of death penalty,
but I have always believed it must be carried out fairly. The
Racial Justice Act ensures that when North Carolina hands down
our state’s harshest punishment to our most heinous criminals –
the decision is based on the facts and the law, not racial
prejudice.” The law allows pre-trial defendants and death-row
inmates to challenge racial bias in the death penalty system
through the use of statistical studies. Prosecutors would then
have the opportunity to rebut the claim that the statistical
disparities indicate racial bias. If proven, a judge could
overturn the death sentence or prevent prosecutors from seeking
the death penalty. . . . The state conference of the NAACP
issued a statement, commending the sponsors of the bill and the
governor. They cautioned, "This law does not assure racial
justice, but it can help bring it about. The law is one of the
most powerful legitimate weapons we can use to rid our state of
the criminal justice practice of racial bias. It does not
address the roots of the problem – stereotypes, fear and even
racism – but it is a start."

8-10-09 -The state of Ohio
is lining up death-row inmates for execution at a feverish pace
not seen here since capital punishment was reinstated a decade
ago. . . . Having already carried out three executions since
June, the state has scheduled at least one lethal injection
every month through the end of the year. . . . That could mean
that by year's end, Ohio will have executed eight men in the
final seven months of 2009. The previous high was seven in all
of 2004. . . . They are coming too fast, argues Ohio Public
Defender Tim Young, who worries that the burdens on state
officials to carry out the tasks in rapid-fire succession could
lead to careless mistakes.

8-5-09
-- The number of murders
in New Jersey declined 24% in the first six months of 2009
compared to the same period last year. Murders declined in
2008, the year after the state abolished the death penalty,
marking the first time since 1999 that New Jersey has seen a
drop in murders for two consecutive years. Murders dropped 11%
in 2007, the year following a state-imposed moratorium on
executions, which was instituted in 2006. Governor Jon Corzine,
who signed the bill abolishing the death penalty, was encouraged
by the statistics and attributed the decline to aggressive
crime-fighting measures: "The release of these crime report
statistics shows that we are winning important battles in the
war against violent criminals and gangs," said the Governor.
"Thanks to the efforts of Attorney General Milgram and the New
Jersey law enforcement community, county task forces, police
departments, and partner agencies, more than 4,200 offenders
have been arrested for crimes including murder, assault with a
firearm, armed robbery, and gun and drug trafficking. We know
more work remains. Even one act of violence against a New
Jersey citizen is one too many."Read more

7-31-09 --
Renowned researchers David Baldus, Professor of Law at the
University of Iowa, and George Woodworth, a fellow of the
American Statistical Association, recently wrote about the
ongoing problem of racial disparities in capital cases.
Professors Baldus and Woodworth were responsible for the
acclaimed study on race and the death penalty in Georgia that
was brought before the U.S. Supreme Court in 1987 in McCleskey
v. Kemp. In response to claims that North Carolina does not
need to pass the Racial Justice Act, the researchers pointed to
"several studies, including one done at UNC-Chapel Hill several
years ago, that found that a defendant's odds of getting the
death penalty in North Carolina increased by 3.5 times if the
victim is white." They wrote further: "Our published review of
all studies completed up to 2003 reaches the same conclusion. No
one who has read the research literature could claim that
white-victim cases more frequently result in death sentences
because they are more heinous and aggravated than black-victim
cases. Studies that provide the strongest evidence that those
who murder whites are substantially more likely to receive death
sentences than those who murder blacks use well-accepted
statistical tools to filter out the effects of these various
non-racial factors." Their entire op-ed may be read below:
Read more

7-28-09 --Following recently passed
legislation, Texas will open an office with nine attorneys to
manage post-conviction appeals in death penalty cases. In the
past, appointed attorneys sometimes missed filing deadlines or
filed inadequate briefs, thereby jeopardizing their clients'
cases. The Office of Capital Writs will be funded by
redirecting money already in the state budget: $500,000 formerly
used to pay private attorneys for appeals and $494,520 from the
state's Fair Defense account. The office will oversee the part
of the appeals process known as state habeas corpus where
constitutional issues outside the trial can be raised. This
important phase can address issues such as new evidence of
innocence, prosecutorial misconduct, and inadequate
representation. Eventually, this office will handle most state
habeas appeals, which currently number about 10 a year. "I
think that everyone agrees (death row inmates) deserve one fair
shot at presenting their issues," said Andrea Marsh, executive
director of the Texas Fair Defense Project. "We saw too many
cases where poor state habeas representation forced people to
lose appeals."

7-27-09 --
There never was any question that Brian Nichols was guilty of
the courthouse shooting of a judge and three other victims in
2005. He had offered to plead guilty if the death penalty was
not pursued, but the state insisted on a full death penalty
trial that ended up being the most expensive capital case in
Georgia's history. In 2008, the case concluded with Nichols
being sentenced to life without parole. Recently, the defense
costs were revealed to be more than $3 million, with the state
paying $2.3 million, and Fulton County paying about $625,000.
The costs of the prosecution and other trial-related expenses
have not been revealed, though state officials estimated it cost
an additional $300,000 for state-supplied staff and other
expenses.
Read more

7-27-09
-- In Pennsylvania, the
state goes through the expensive and time-consuming process of
trying many death penalty cases and fighting appeals, but almost
all cases end with a life sentence. According to a recent
Associated Press study of what happens in capital cases in the
state, 124 death sentences have been overturned and
resentenced. When these cases went through the justice system a
second time with the original errors corrected, 95% (118)
resulted in life sentences or less. Only 6 inmates were
resentenced to death. Pennsylvania has the fourth largest death
row in the country, but the only people who have been executed
were three inmates who waived their appeals. The last execution
in a fully contested case was 47 years ago. Twenty-one inmates
on death row have died of natural causes or suicide since 1983.
Six inmates have been exonerated when their convictions were
reversed and they were freed following acquittals or dismissal
of all charges.
Read more

7-21-09 --
The Ohio Parole Board made a rare recommendation of clemency on
July 17, voting 5-2 that Jason Getsy's death sentence should be
reduced to life without parole. Getsy is scheduled to be
executed on August 18 for the murder of Ann Serafino in 1995. A
co-defendant who initiated and organized the crime received a
lesser sentence of 35 years to life. "In imposing a death
sentence, it is imperative that we have consistency and similar
penalties imposed upon similarly situated co-defendants," the
Parole Board said. Since Ohio resumed executions in 1999, the
Parole Board has only recommended clemency two other times, and
in both cases the governor followed the recommendations.

7-20-09 --
John Bellinger, who served as legal adviser to the State
Department from 2005 to 2009, has called on President Obama to
assist in the review of the death penalty cases of foreign
nationals who were denied rights under the Vienna Convention on
Consular Relations. The U.S. has ratified the Vienna Convention
and the Protocol that provides for resolution of disputes in the
International Court of Justice in the Hague (ICJ). Mexico
brought a suit to this court on behalf of its citizens on death
row in various states because the U.S. had not provided the
defendants with access to their consulates at the time of their
arrest. The ICJ held that the cases of the Mexican nationals
should be reviewed before any executions went forward.
President George W. Bush ordered state courts to review the
cases, but this order was ultimately blocked in the U.S. Supreme
Court. Mr. Bellinger said that President Obama could comply
with our obligations under the treaty through legislation: "The
Obama administration's best option would be to seek narrowly
tailored legislation that would authorize the president to order
review of these cases and override, if necessary, any state
criminal laws limiting further appeals, in order to comply with
the United Nations Charter," he wrote recently in the N.Y.
Times.

Attorney General Rob McKenna will
ask the Washington state Supreme Court to lift the stay of
execution of a death row inmate after a judge ruled Friday that
the state's lethal injection procedures were constitutional.

By
Rachel La Corte, Associated Press Writer, Seattle Times

7-10-09 -- Attorney
General Rob McKenna will ask the Washington state Supreme Court
to lift the stay of execution of a death row inmate after a
judge ruled Friday that the state's lethal injection procedures
were constitutional. . . . Assistant Attorney General John
Samson said that they will file a motion with the court next
week to vacate the stay of execution of Cal Coburn Brown after
Friday morning's ruling by Thurston County Superior Court Judge
Chris Wickham. . . . Brown was one of three death-row inmates
who argued that Washington's preferred method of execution
needed a major overhaul to satisfy constitutional bans on cruel
punishment. . . . But Wickham ruled that the inmates presented
no evidence that the state "intended to impose punishment that
was 'cruel.'" He said the method was constitutional under both
the state and U.S. Constitutions.

7-6-09 -- Many convicted
killers seek solace in the Lord in their final days, and Donald
Lee Leger is among them. Further, he insists on the Catholic
interpretation -- not a Baptist version that blared on the TV
sets for all death-row prisoners at the Louisiana State
Penitentiary at Angola. . . . So he sought help from the
American Civil Liberties Union. Though the ACLU has fought for
separation of church and state in the public square -- Nativity
scenes, Ten Commandments, crosses -- in Leger's case it defended
a particular brand of worship in a taxpayer-financed cage for
the state's most evil men. . . . "If you are behind bars and you
have limited contact with the outside world, the only thing you
have is your spirituality, " said Katie Schwartzmann, an
attorney for the ACLU, which sued on behalf of Leger. "Baptists
had access to services that Catholic prisoners didn't have." . .
. The prison relented in a settlement effective this month. So
Leger -- awaiting death for murdering a stranger in St. Mary
Parish while chasing his girlfriend, who escaped his kidnapping
attempt -- will now have viewings of Catholic Mass and have
private confessions with a priest. He will also receive the Holy
Eucharist.

7-2-09 -- A federal
appeals court on Thursday overturned a lower court’s finding
that Tennessee’s lethal injection procedure is unconstitutional.
. . . The case concerns Edward J. Harbison, who was sentenced to
death for the 1983 murder of an elderly woman. . . . In 2007, as
a result of Mr. Harbison’s appeals, the Federal District Court
in Nashville found that Tennessee’s procedures for execution
were unconstitutional, in part because of the potential that the
process would cause unnecessary pain to the condemned. . . .
After that decision, however, the Supreme Court issued an
opinion that largely supported lethal injection. The opinion,
written by Chief Justice John G. Roberts Jr., was one of several
in a fractured decision and approved Kentucky’s process, which
uses a sequence of three drugs. The opinion said a state with
procedures “substantially similar to the protocol we uphold
today” would pass muster.

6-22-09 -- For years, the state attorney
general's office in Virginia has distributed letters to former
jurors in capital cases, cautioning them against talking to
defense lawyers working on appeals. . . . And the Virginia State
Bar wants to put a stop to the letters. . . . The form letter,
which is supplied to local prosecutors, advises jurors that they
may be contacted by someone representing the convicted killer
who "may try to give the false impression that they are working
on behalf" of the prosecution or the courts, the
Washington Post reports. . . . The state bar, which
considers the letter to be "offensive," has launched
disciplinary proceedings to stop the state from sending out the
letter. This is the second such attempt since the letter first
became public in 2004.

6-19-09 --
A hearing to decide the fate of one of Texas' highest judges
accused of judicial misconduct is now scheduled to be in a San
Antonio courtroom in August. . . . The State Commission on
Judicial Conduct is accusing Court of Criminal Appeals Presiding
Judge Sharon Keller of discrediting the judiciary after she
refused to accept a last-minute appeal from death row inmate
Michael Wayne Richard on the day of his execution Sept. 25,
2007. . . . Keller's hearing was expected to be in Austin, but
the judge whom the Texas Supreme Court appointed as special
master in the case ordered it be held in his newly renovated
courtroom in San Antonio. . . . State District Judge David
Berchelmann Jr. is tasked with determining if any disciplinary
action is necessary against Keller. He'll submit a report of his
findings to the Judicial Conduct Commission, which will then
have the option of dismissing the case, issuing a public censure
or recommending that Keller be removed from office.

BOOKS--The Ride: A Shocking Murder and
a Bereaved Father’s Journey from Rage to Redemption

6-1-09 --The Ride: A Shocking Murder and a Bereaved Father’s Journey
from Rage to Redemption is a new book by Brian MacQuarrie that
explores a parent's grief and subsequent transformation through
the story of Robert Curley in Massachusetts. Curley's 10-year-old son, Jeffrey, was a victim of
abduction and murder in 1997. The murder shocked and outraged
the community of East Cambridge outside of Boston.
MacQuarrie explores the father's evolution “from grief to anger
to activism against predators,” and from being an outraged
father demanding the death penalty for his son’s murderer to an
outspoken critic of capital punishment. Delving deeper into the
issue, the author looks at the struggle of Massachusetts
residents as they decide whether to reinstate capital
punishment. Senator John Kerry calls the book, a “compelling
and deeply moving…story of Bob Curley’s journey to hell and
back.” Sister Helen Prejean said "Robert Curley's radical
transformation is a lesson for us all."

6-17-09 --
Eighty-eight percent of the country's top criminologists do not
believe the death penalty acts as a deterrent to homicide,
according to a study published in Northwestern University School
of Law's Journal of Criminal Law and Criminology. The authors
say the study, "Do Executions Lower Homicide Rates? The Views of
Leading Criminologists," undermines the idea of deterrence as a
rationale for maintaining the punishment.

The study was written by Michael
Radelet, sociology department chair at the University of
Colorado-Boulder, and Traci Lacock, an attorney and sociology
graduate student in Boulder. They said 87 percent of the expert
criminologists believe that abolition of the death penalty would
not have any significant effect on murder rates. In addition, 75
percent of the respondents agree that "debates about the death
penalty distract Congress and state legislatures from focusing
on real solutions to crime problems." (The weblink below
connects to a pdf version of the study.) /
Crime & Justice News

6-13-09 --
The federal appeals court on Friday reinstated the death
sentence against a Marietta man for beating his supervisor to
death with a tree trunk near Lake Allatoona in 1985. . . . In a
2-1 decision, the 11th U.S. Circuit Court of Appeals in Atlanta
overturned a federal judge’s ruling that found Lawrence Joseph
Jefferson’s lawyers provided ineffective legal assistance at
trial. . . . In 1986, a CobbCounty jury sentenced Jefferson to death for killing and robbing 37-year-old Edward Taulbee, his
drinking buddy and his boss at a construction site. After
bludgeoning Taulbee to death, Jefferson took his wallet and
car. . . . Ed Carnes, an 11th Circuit judge, issued a strong
dissent in a rare vote to overturn a death sentence. He wrote
that Jefferson’s lawyers should have had their client examined
for neurological damage that occurred when Jefferson’s head was run over by a car when he was 2 years old.

6-8-09 --
Kenneth B. Trotter had been practicing law for less than a year
when an Alabama judge appointed him to assist two more seasoned
lawyers in defending Holly Wood, who was facing the death
penalty. . . . After Mr. Wood was convicted in 1994 of murdering
his former girlfriend, Mr. Trotter led the effort to persuade
the jury to spare his life. The young lawyer came up just short:
the jury recommended death by a vote of 10-to-2, the minimum
allowed under Alabama law. . . . Mr. Trotter failed to pursue or
present evidence that his client was mentally retarded, though
he had a competency report in hand that said as much. In
September, a divided three-judge panel of the federal appeals
court in Atlantaruled that he had made a strategic decision, not a
grave error. . . . Judge Rosemary Barkett, the dissenting judge,
saw it differently. . . . “An inexperienced and overwhelmed
attorney,” Judge Barkett wrote of Mr. Trotter, “realized too
late what any reasonably prepared attorney would have known:
that evidence of Wood’s mental impairments could have served as
mitigating evidence and deserved investigation so that it could
properly be presented before sentencing.” . . . “An
inexperienced and overwhelmed attorney,” Judge Barkett wrote of
Mr. Trotter, “realized too late what any reasonably prepared
attorney would have known: that evidence of Wood’s mental
impairments could have served as mitigating evidence and
deserved investigation so that it could properly be presented
before sentencing.”

6-2-09 --
Richard Allen Davis, who made national news in 1993 for
murdering 12-year-old Polly Klaas, got no sympathy from the
California Supreme Court on Monday. . . . By a unanimous vote,
the court upheld the death sentence Davis got from San Jose
jurors in 1996. The court shot down all of
the reviled inmate's arguments, including that Davis
didn't get a fair trial because he was tried in the Bay Area's
hostile media market. . . . Davis' lawyer, Visalia, Calif., solo Phillip Cherney,
had argued his client didn't get a true venue change because the
trial was only moved from SonomaCounty at the far northern end
of the Bay Area to Santa Clara County at the southern end. . . .
The Supreme Court rejected that plea, noting that at the time of
trial Santa Clara County was the fifth largest in the state with
more than 1.6 million residents.

5-31-09 --
THERE is no abuse of government power more egregious than
executing an innocent man. But that is exactly what may happen
if the United States Supreme Court fails to intervene on behalf
of Troy Davis. . . . Mr. Davis is facing execution for the 1989
murder of an off-duty police officer in Savannah, Ga., even though seven of the
nine witnesses have recanted their testimony against him. Many
of these witnesses now say they were pressured into testifying
falsely against him by police officers who were understandably
eager to convict someone for killing a comrade. No court has
ever heard the evidence of Mr. Davis’s innocence. . . . After
the United States Court of Appeals for the 11th Circuit barred
Mr. Davis from raising his claims of innocence, his attorneys
last month petitioned the Supreme Court for an original writ of
habeas corpus. This would be an extraordinary procedure —
provided for by the Constitution but granted only a handful of
times since 1900. However, absent this, Mr. Davis faces an
extraordinary and obviously final injustice. . . . This threat
of injustice has come about because the lower courts have
misread the Anti-Terrorism and Effective Death Penalty Act of
1996, a law I helped write when I was in Congress. As a member
of the House Judiciary Committee in the 1990s, I wanted to stop
the unfounded and abusive delays in capital cases that tend to
undermine our criminal justice system.

5-20-09 --
Twenty-seven former judges, justices and prosecutors are asking the
U.S. Supreme Court to allow death-row inmate Troy Davis’ innocence
claims to be heard in federal court. . . . The filing comes a day
after Davis’ lawyers filed their final legal bid. They are asking
the nation’s highest court to send Davis’ case back so a judge can
consider the recantation testimony of a number of key witnesses who
testified for the state at the 1991 trial. . . . Davis sits on death
row for the killing of off-duty Savannah Police Officer Mark Allen
MacPhail in 1989. MacPhail, a 27-year-old father of two and former
U.S. Army ranger, was shot before he could draw his weapon. . . .
Davis can make “an extraordinary showing through new, never reviewed
evidence that strongly points to his innocence,” the judges’ and
prosecutors’ filing said. To allow Davis’ execution without
appropriate legal review is “a plain constitutional injustice,” the
filing said.

5-20-09 --
Opponents of the death penalty looking to exonerate wrongly
accused prisoners say their efforts have been hobbled by the
dwindling size of America’s newsrooms, and particularly the
disappearance of investigative reporting at many regional
papers. . . . In the past, lawyers opposed to the death penalty
often provided the broad outlines of cases to reporters, who
then pursued witnesses and unearthed evidence. . . . Now, the
lawyers complain, they have to do more of the work themselves
and that means it often doesn’t get done. They say many fewer
cases are being pursued by journalists, after a spate of
exonerations several years ago based on the work of reporters. .
. . The decline in newsroom resources has also hampered efforts
by death-penalty opponents to search for irrefutable DNA evidence that an innocent person has been executed in America. . . . Because judges and
prosecutors are usually reluctant to reopen

5-18-09 --
The timeline of Troy Davis' 18 years on death row reads like
most other condemned prisoners' slow shuffle to the execution
chamber. . . . His appeals chart a legal marathon from a
courtroom in Savannah, Ga., to the U.S. Supreme Court. The
execution date for Davis, convicted of killing a police officer,
has been set three times — and three times the courts or Georgia
officials have granted extensions. . . . What doesn't exist in
the docket entries or trial transcripts is a formal airing of
evidence discovered after Davis' conviction that, his lawyers
say, could win his freedom. Seven of nine prosecution witnesses
have recanted their testimony implicating him since his 1991
trial. . . . Davis' attorneys and advocates for the wrongfully
convicted say his case, set for another U.S. Supreme Court
appeal this week, represents one of possibly dozens in which
courts are reluctant to consider evidence discovered after
conviction that might exonerate inmates on death row.

5-18-09 --
Officials in this state are preparing to execute a prisoner for
the first time since 2005, when criticisms about the state’s
lethal injection method emerged and one doctor who carried out
executions acknowledged being dyslexic and sometimes
“improvising” when it came to the amounts of chemicals he
administered. . . . That doctor will no longer take part, and a
United States Supreme Court ruling last year upheld a lethal
injection procedure similar to the one Missouri will use, but
some lawmakers, including some prominent Republicans, say they
have lingering questions about the state’s system of capital
punishment. . . . The focus of those questions has shifted some,
no longer centering on the method of execution but turning
toward which prisoners are condemned and which are not, and
whether those choices make sense.

5-15-09 --
North Carolina's procedure for lethal injections was approved
through the proper channels, according to a judge's ruling
released yesterday. . . . The ruling is the second court
decision this month that upholds the death penalty in the state,
and it came on the same day that state legislators, in a
separate action, voted to amend state law to try to clear the
way for executions to resume in North Carolina. . . . For nearly
three years, several lawsuits have created a de facto moratorium
on the death penalty in the state, but the recent developments
show that both the judiciary and the legislature are trying to
resolve the legal uncertainty after a long standstill. . . .
"There's a lot of things that have been gumming up the works,"
said Mark Kleinschmidt, the executive director of the Fair Trial
Initiative in Durham. . . . In his decision yesterday, Judge
Donald Stephens of Wake Superior Court ruled that a court did
not have to review the Council of State's decision in February
2007 to approve a new procedure for how North Carolina carries
out lethal injections. Five death-row prisoners argued last
October that a court review was required, and that the council
should have heard from inmates before issuing its approval. . .
. A state administrative-law judge ordered the council last year
to revise the protocol, saying that the method for executing
prisoners doesn't ensure that they won't feel pain. The council,
made up of the governor and nine other statewide elected
officials, declined.

5-13-09 --
The state Supreme Court ruled yesterday that a murderer whose
case was proceeding as New Jersey abolished the death penalty
can be sentenced to life without parole, even though the state
had no such punishment when he was convicted. . . . A jury will
now decide the punishment for Steven Fortin, a Carteret handyman who was convicted in 2007 of raping and murdering a Woodbridge woman and was
sentenced to death. . . . Before New Jersey abolished capital
punishment in January 2008, convicted murderers who were not
sentenced to death were automatically sentenced to 30 years in
prison before being eligible for parole. The law that revoked
the death penalty, however, toughened the prison term to life
without parole. . . . But the law did not explain what to do
with someone like Fortin, who committed his crime in 1994, while
the old law was in effect, and was still going through the trial
process when it was changed. At least 22 such cases were ongoing
when the death penalty was repealed.

5-11-09 --
Condemned prisoner Kevin Cooper was denied a rehearing Monday by
a federal appellate panel in a 114-page order that bristled with
dissents, one of them claiming that "the state of California may
be about to execute an innocent man." . . . Another judge
defended the decision, saying evidence and post-conviction
forensic tests only point to Cooper, now 51, as the 1983
knife-and-hatchet slayer of three family members and a
houseguest in a Chino Hills home. . . . With the denial of an
"en banc" rehearing before an 11-judge judicial panel of the 9th
U.S. Circuit Court of Appeals, Cooper has 90 days to ask the
United States Supreme Court to review his case, the first step
toward getting an appeal. . . . He has applied for relief nine
times previously to the nation's high court. . . . Up to 28 of
the 9th Circuit's judges can vote on an en banc hearing
application. Published dissents indicate at least 11 were in
favor of rehearing the case. One judge said the vote was closer
than that.

The bittersweet reality is that money, rather than morality, has
become the tipping point for abolishing it.

By
Corinna Barrett Lain, Christian Science Monitor Editorial

5-11-09 --
This year, state budgetary crises have given death penalty
opponents their most successful argument yet – money. . . .Just
two states have abolished the death penalty in the past 40
years, New Jersey in 2007 and New Mexico in March. The cost of
capital punishment played a key role in both decisions, and is
driving current legislative attempts to repeal the death penalty
in a number of other states. . . . The bittersweet reality is
that money, rather than morality, has become the tipping point
for saving lives. Why? . . . Administering the death penalty is
breathtakingly expensive. Contrary to popular opinion, it costs
substantially more to execute people than to send them to prison
for the rest of their lives. . . . In California, which houses
the nation's largest death row, it costs about $137 million
annually to maintain the state's death penalty system. The state
has conducted only 11 executions since reinstating the death
penalty in 1978, bringing the average cost per execution to $250
million. That's right – a quarter of a billion dollars per
execution. . . . California's estimated cost of administering a
system without capital punishment (imposing instead a maximum
sentence of life without the possibility of parole) is $11
million annually, which means the state could save $126 million
per year if it rescinded a penalty that it almost never uses.
That's big money – money that could be allocated to healthcare
and to education, money that could put more police officers on
the streets and take more killers off them.

5-10-09 --
The death row sentence for a man convicted of the 1984 murder of
an elderly woman has been overturned after he was ruled mentally
retarded. . . . Limestone County District Attorney Kristi Valls
says Kenneth Glen Thomas will head to court May 27 to be
re-sentenced to life in prison without parole. He has been on
death row since his 1986 murder conviction. . . . Authorities
say Thomas killed 82-year-old Flossie McLemore, his neighbor,
and then tried to conceal the murder by setting McLemore's house
on fire.

CourtWatch: Capital Case In Texas
Marred By Romantic Relationship Between Judge And Prosecutor

by
Andrew Cohen CBS News

5-3-09 --
The
last time we checked in on law and justice in Collin
County, Texas, Matthew Goeller had almost single-handedly
stopped an execution less than two hours before it was scheduled
to begin. The former assistant district attorney had sworn under
oath in an affidavit that the trial judge in Charles Dean Hood’s
capital murder case in 1990 had been having an illicit affair
with the prosecutor in the case. . . . Goeller’s belated act of
courage - he had known about the affair for decades before he
went public with the information - has begun to force the state
of Texas, grudgingly it seems, to do the right thing. Hood’s
scheduled execution was postponed. An appellate court authorized
an honest review of the unthinking conduct of former judge Verla
Sue Holland and former prosecutor Thomas S. O’Connell, Jr. On
Friday, a judge formally confirmed Goeller’s story.

DPIC Introduces Podcasts

The
Death Penalty Information Center is pleased to
announce the first in a series of podcasts on death
penalty issues. Our first presentation is on
Arbitrariness.
To listen to this podcast, please visit DPIC's home
page.

For
information on downloading and subscribing to DPIC's
podcasts, see our multimedia page.

4-27-09 --
Governor Perdue can allow us a baseball stadium, but can he halt
the execution of an innocent man? According to Georgia law, no,
but the case of Troy Davis is compelling enough that pressure
will likely be put on him to do something. . . . On April 16, a
federal appeals court decided not to grant death row inmate Troy
Davis a hearing to present evidence of innocence that has yet to
be considered by a court. . . . Davis was arrested in 1989 for
the murder of a police officer in Savannah. The officer was
responding to calls for help from a drunken homeless man who was
being pistol whipped over his beer when the attacker shot the
officer once and then stood over him to shoot again.

4-20-09 --
A federal appeals court on Thursday ruled against death row
inmate Troy Anthony Davis by a vote of 2-1. . . . Davis' claims
of innocence have delayed his execution for the killing of a
Savannah, Ga., police officer in 1989. Seven of the nine trial
witnesses for the prosecution have recanted their testimony,
according to Davis' lawyers, who also cite affidavits from other
witnesses saying another prosecution witness, Sylvester Coles,
has confessed to the crime. . . . Judges Joel F. Dubina and
Stanley Marcus of the 11th U.S. Circuit Court of Appeals said in
their opinion issued late Thursday afternoon that after
"painstaking review" they concluded that Davis had "completely
failed" to meet the procedural requirements for filing a second
federal habeas petition.

4-20-09 --
Texas lawyers have repeatedly missed deadlines for appeals on
behalf of more than a dozen death row inmates in the last two
years — yet judges continue to assign life-or-death capital
cases and pay hundreds of thousands in fees to those attorneys,
a Chronicle records review shows. . . . Missing deadlines means
their clients can be automatically denied constitutionally
mandated reviews before their execution. Houston lawyer Jerome
Godinich missed three recent federal deadlines, the Chronicle
reported in March. One client was executed in February after the
federal appeal was filed too late. In March, the 5th Circuit
Court of Appeals chastened Godinich for using the same excuse —
a malfunctioning after-hours filing machine — for missing
another deadline for a man still on death row.

4-16-09 --
The federal appeals court in Atlanta on Thursday rejected
death-row inmate Troy Anthony Davis’ bid for a new trial on
claims he did not kill a Savannah police officer in 1989. . . .
In a 2-1 opinion, the 11th U.S. Circuit Court of Appeals ruled
that Davis could not establish by clear and convincing evidence
a jury would not have found him guilty. . . . Davis’ innocence
claims have attracted international attention. They rely largely
on the recantations of key prosecution witnesses who testified
at trial and on statements by others who say another man told
them he was the actual killer. . . . In October, the 11th
Circuit granted Davis a stay three days before he was to be put
to death by lethal injection. It marked the third time Davis’
life was spared before his scheduled execution.

4-3-09 --
Four people who have volunteered to administer lethal injections
to death-row inmates at the Washington State Penitentiary in
Walla Walla quit their positions this week, apparently worried
that their identities could become public as a result of an
ongoing court case to decide whether lethal injection
constitutes cruel and unusual punishment. . . . The four
resigned Tuesday, which was the deadline Thurston County
Superior Court Judge Chris Wickham had set for the team's
records -- detailing the members' credentials, qualifications
and experience in administering lethal drugs -- to be submitted
for his review. . . . The state is now without a
lethal-injection team, and it's unclear what effect the
resignations will have on the court proceedings. . . . Death-row
inmate Darold Stenson, who was sentenced to die in 1994 for
killing his wife and business partner, filed his lawsuit last
year, claiming that lethal injection can result in excruciating
pain if not administered correctly.

3-31-09 --In
asking the State Commission on Judicial Conduct to dismiss its
charges against her, Court of Criminal Appeals Presiding Judge
Sharon Keller lays some of the blame for a Texas inmate's
execution in 2007 on his lawyers. . . . In her March 24 answer
to the commission's Notice of Formal Proceedings, Keller alleges
she never was told that Michael Richard's lawyers were having
computer problems that delayed them in filing for a stay of
execution on Sept. 25, 2007, the day that the state executed
Richard. . . . But Keller alleges in her answer -- which has 142
pages of exhibits attached -- that Richard's attorneys at the
Texas Defender Service did not need a computer to
prepare and timely file a motion for stay after the U.S. Supreme
Court granted a petition for a writ of certiorari in Baze v.Rees
to determine whether the chemicals used in Kentucky's lethal
injection method of execution constituted cruel and unusual
punishment -- an issue Richard sought to raise with the CCA.
Keller, a CCA judge since 1994 and the court's presiding judge
since 2000, contends in her answer filed with the commission
that Richard could have handwritten a motion for stay and the
court would have accepted it, or he could have filed an
application for a writ of habeas corpus in the trial court. (See
Keller's answer and
exhibits.)

3-24-09 --
Any thoughts that an Obama presidency would herald a moratorium
of the federal death penalty can be safely laid to rest. . . .
Attorney General Eric Holder recently rejected a defense offer
of life without the possibility of release in the prosecution of
alleged San Francisco gangbanger
Dennis Cyrus, according to sources familiar with the
case. The decision came after
Holder accepted a 41-year plea deal in a separate
capital gang trial that had opened down the hall the same week.
. . . Cyrus' attorneys had been offering 56 years, then upped
that number to life last month on the eve of trial, sources
said. But federal prosecutors informed the court last week that
Holder had "reauthorized" the death penalty.

Tardy paperwork takes away final
appeals for nine men, six of whom have been executed

By
Lise Olsen, Copyright 2009 Houston Chronicle

3-22-09 --
Three men on Texas’ death row — and six others already executed
— lost their federal appeals because attorneys failed to meet
life-or-death deadlines, essentially waiving the last
constitutionally required review before a death sentence is
carried out. . . . Johnny Johnson, executed in February for a
Houston murder, was the most recent: His lawyers missed a
federally mandated filing deadline by 24 hours. . . . One of his
attorneys made the same mistake in the case of death row inmate
Keith Steven Thurmond, a former Montgomery County mechanic now
on death row awaiting execution, according to case records. . .
. In both cases, the lawyer waited until after business hours on
the last day an appeal could be filed and then blamed a
malfunctioning filing machine for his tardiness, according to a
5th Circuit Court of Appeals opinion issued last week. The court
chastised the attorney for using the same excuse twice.

3-20-09 --
Sen. Russ Feingold, carrying the liberal mantle as he so often
does, is reintroducing legislation calling for the abolishment
of the death penalty. . . . Feingold’s Federal Death Penalty
Abolition Act of 2009 would put an immediate halt to federal
executions and forbid the use of the death penalty as a sentence
for violations of federal law. The bill follows New Mexico Gov.
Bill Richardson’s move this week to abolish the death penalty.

3-19-09 --Gov. Bill Richardson, who has supported capital
punishment, signed legislation to repeal New Mexico's death
penalty, calling it the "most difficult decision in my political
life." . . . The
new law replaces lethal injection with a sentence of
life in prison without the possibility of parole. The repeal
takes effect on July 1, and applies only to crimes committed
after that date. . . . "Regardless of my personal opinion about
the death penalty, I do not have confidence in the criminal
justice system as it currently operates to be the final arbiter
when it comes to who lives and who dies for their crime," Richardson said. . . . The
American Civil Liberties Union called it "a historic
step and a clear sign that the United States continues to make
significant progress toward eradicating capital punishment once
and for all."

3-9-09 --
Justice John Paul Stevens decried “the fundamental inhumanity
and unworkability of the death penalty” in dissenting today from
the Supreme Court’s refusal to accept an appeal by a convicted
murderer who was first sentenced to death 32 years ago. . . .
Both Stevens and Justice Stephen G. Breyer filed dissents to the
cert denial,
SCOTUSblog reports. At issue is whether delayed
executions violate the ban on cruel and unusual punishment. The
Atlanta-based 11th U.S. Circuit Court of Appeals in an
opinion (PDF) last year found no constitutional
violation, noting a lack of Supreme Court precedent on the
issue. . . . Stevens and Breyer dueled with Justice Clarence
Thomas, who answered their arguments in an opinion concurring in
the cert denial. . . . Stevens first
declared his opposition to capital punishment in an
opinion last year, but said he will respect court precedent on
the issue. . . . Stevens
wrote today (PDF) that condemned inmates wait an
average of 13 years for execution. “To my mind, this figure
underscores the fundamental inhumanity and unworkability of the
death penalty as it is administered in the United States,” he
said.

3-2-09 --
New Attorney General
Eric Holder has authorized a deal that could abruptly
end a rare San Francisco death penalty trial only days after it
began. . . . Not only does Holder's reversal likely spare
defendant
Emile Fort his life, but it may signal a less
aggressive approach to the death penalty in federal court. And
it vindicates the local U.S. Attorney's office: Months ago
federal prosecutors in San Francisco had recommended a 40-year
plea bargain for Fort to their higher-ups in Washington -- only
to be rebuffed by Holder's predecessor,
Michael Mukasey.

2-24-09 --
When Gov. Martin O’Malley appeared before the Maryland Senate
last week, he made an unconventional argument that is becoming
increasingly popular in cash-strapped states: abolish the death
penalty to cut costs. . . . Mr. O’Malley, a Democrat and a Roman
Catholic who has cited religious opposition to the death penalty
in the past, is now arguing that capital cases cost three times
as much as homicide cases where the death penalty is not sought.
“And we can’t afford that,” he said, “when there are better and
cheaper ways to reduce crime.” . . . Lawmakers in Colorado,
Kansas, Nebraska and New
Hampshire have made the same argument in recent months as they
push bills seeking to repeal the death penalty, and experts say
such bills have a good chance of passing in Maryland, Montana and New Mexico. . . .
Death penalty opponents say they still face an uphill battle,
but they are pleased to have allies raising the economic
argument. . . . Efforts to repeal the death penalty are part of
a broader trend in which states are trying to cut the costs of
being tough on crime. Virginia and at least four other states,
for example, are considering releasing nonviolent offenders
early to reduce costs.

2-24-09 --
A western Kentucky man convicted of raping and murdering an
honor student had his death sentence overturned by a federal
judge who said Tuesday that justice demands a new hearing even
though there's no doubt about the brutality of the crime. . . .
U.S. District Judge Thomas B. Russell sent 34-year-old Robert
Keith Woodall's case back to state court for re-sentencing.
Russell found that the state judge improperly instructed the
jury before sentencing and denied Woodall a chance to object to
a black juror being dismissed. . . . "The crimes Woodall
admitted to committing are revolting and despicable," Russell
wrote in a 92-page ruling. "There is also no question that the
victim and her family deserve justice. However, ours is a system
of law that is concerned with justice for both the victim and
the accused." . . . Woodall in 1998 pleaded guilty to killing
16-year-old Sarah Hansen after abducting her from a convenience
store in Greenville in western Kentucky. A jury sentenced him to
death for the murder plea and life in prison for kidnapping and
rape.

2-20-09 --
A Texas judicial commission filed proceedings Thursday against
the presiding judge of the state's highest criminal court,
charging her with improperly cutting off appeals for a condemned
inmate on the night of his execution. . . . The action by the
Texas Commission on Judicial Conduct against Sharon Keller,
presiding judge of the Texas Court of Criminal Appeals, could
result in her removal from office. . . . Convicted killer
Michael Richard was put to death on Sept. 25, 2007, after Keller
ordered a clerk to close the court's office promptly at 5 p.m.
Lawyers for Richard had requested that the office stay open an
extra 20 minutes to permit a late appeal. . . . Keller's
attorney, Chip Babcock, told The Associated Press that his
client "absolutely and totally denies these accusations." Keller
has 15 days to formally respond to the charges in the
proceedings filed by the judicial commission.

2-18-09 --
As he asks lawmakers today to support his bill to repeal
Maryland's death penalty, Gov. Martin O'Malley (D) will be
heading down a road rife with political pitfalls with no clear
path toward success. . . . A majority of Marylanders still
support capital punishment. The General Assembly remains
bitterly divided over the issue. And O'Malley will be testifying
to the same Senate committee that killed similar legislation in
each of the past two years. . . . In an interview, the governor,
a Catholic who has long opposed capital punishment, acknowledged
the challenges ahead but said he considers himself "hard-wired"
to seek a different outcome. . . . "At the end of the day, the
only sure guarantee one has in these honorable jobs of public
service is being able to look at yourself in the mirror and know
you did your very best, so that's what I'm trying to do,"
O'Malley said. "I'm really not looking for a medal. I'm not
looking for applause. I just believe that it's the right thing
to do, and therefore I must try."

2-17-09 --Sharon
Keller, the highest ranking criminal judge in Texas, is facing a bid by the
Texas state legislature to
remove her from office. . . . Yesterday, Texas state legislator
Lon Burnam filed a
resolution calling for the state House of
Representatives to consider impeaching her in light of her
handling of a case involving a death-row inmate named Michael
Richard. Keller, pictured, the conservative presiding judge of
the Texas Court of Criminal Appeals, has long been viewed by
critics as too quick to affirm death-penalty verdicts. . . . On
Sept 25, 2007, Richard sought to appeal his death sentence to
the Texas Court of Criminal Appeals, following the Supreme
Court’s decision that day to consider the constitutionality of
lethal injection. . . . But Keller refused to keep the court
open after 5:00 pm to allow Richard’s counsel to have the time
to prepare the appeal. Richard was executed later that day.

Senate Bill 13: Bill allowing
option of a life without parole sentence would fix ‘gaping hole
in Georgia law.’

By
Bill Rankin, The Atlanta Journal-Constitution

2-9-09 --
Defense attorneys say it as a matter of fact. And some
prosecutors don’t deny it. . . . That is, district attorneys
often mount costly death penalty prosecutions when they would be
more than satisfied with sentences of life in prison without the
possibility of parole. . . . “It happens more often than the
public would ever imagine,” said JohnMarshall Law School professor
Mike Mears, who has defended dozens of death penalty cases. . .
. Under Georgia law, the only ways to lock up a murderer for
good is for a DA to seek death, or to get a murder conviction
against a defendant who had a prior violent felony conviction.

2-1-09 --
The Supreme Court of Ohio has publicly reprimanded Judge John M.
Stuard of the Trumbull County Court of Common Pleas and
assistant county prosecutor Christopher D. Becker for
professional misconduct arising from Becker’s preparation, at
Stuard’s request, of the judge’s sentencing opinion affirming
the death sentence in the 2003 murder case of Donna Roberts. . .
. Roberts was convicted in for the 2001 murder of her husband,
Robert Fingerhut, 59. According to prosecutors, Roberts, now 65,
was having an affair with Nathaniel Jackson, 34, of Youngstown
and planned the murder in order to acquire a $550,000 insurance
policy on Fingerhut’s life. . . . Robert recruited Jackson to
murder her common law husband. Jackson has also been sentenced
to death for his role in the murder. . . . Roberts’ death
sentence made her the first woman since 1991 to be on Ohio’s
death row. She is one of only two women in the United States on
death row.

January 2009

BOOKS: Life and Death Matters:Seeking the Truth About Capital Punishment

Death Penalty Information Center

1-30-09 --Life and Death Matters: Seeking the Truth About Capital Punishment
is a new book that documents author Robert Baldwin’s
personal journey in confronting racism and the death penalty in
the Deep South. Baldwin shares his evolution in
a conversational, first-person style with a declared faith
perspective. Written for people of all beliefs and backgrounds,
he focuses on the myths and misconceptions about prisons and the
death penalty discovered through his personal experiences. . . .
Baldwin began his career as a medical doctor and now devotes his
time to public service work in prison ministry and to helping
children born deaf and hard of hearing.

BOOKS: The Future of America's Death Penalty

Death Penalty Information Center

1-22-09 --The
Future of America's Death Penalty, edited by Charles S.
Lanier, William J. Bowers, James R. Acker, is a new book
comprised of original chapters authored by nationally
distinguished scholars. It is an ambitious effort to identify
the most critical issues confronting the future of capital
punishment in the United States and the steps that must be taken
to gather and analyze the information that will be necessary for
informed policy judgments. Contributors articulate the most
pressing issues of administration, litigation, legislation, and
executive action confronting the future of capital punishment,
and identify research strategies designed to supply answers to
those questions. . . . Among the authors included in this
work are David Baldus, Catherine Grosso, Hugo Bedau, John Blume,
Sheri Lynn Johnson, William Bowers, Richard Dieter, Jeffrey
Fagan, Valerie West, Deborah Fleischaker, Jonathan Gradess,
Robert Johnson, Jon Sorensen, and Margaret Vandiver, with a
Foreward by Ronald Tabak.

1-27-09 --
In a decision that may prove to be a lightning rod in the debate
over Pennsylvania's use of the death penalty, the state Supreme
Court has ruled that any criminal defendant with mental
impairments, short of being legally defined as "mentally
retarded," can be executed for capital offenses. . . . A
dissenting justice accused the majority of being "draconian" and
warned the ruling might lead to putting mentally retarded people
to death. . . . The justices in the 5-2 decision in Commonwealth v. Vandivner ruled that those
seeking waiver of the death penalty must show records noting a
defendant's mental illness began before his or her 18th birthday
-- a decision Justice Max Baer labeled as problematic for
certain defendants.

1-1-09 --
A murder defendant who says it is “unconscionable” for him to
have been denied legal representation for eight months is suing
the head of the state’s public defender system. . . . “This is
surely an unprecedented deprivation of counsel in modern times,”
said the lawsuit, filed Wednesday for Jamie Ryan Weis by four
prominent Atlanta lawyers. . . . Prosecutors are seeking the
death penalty against Weis for the Feb. 2, 2006, killing of
Catherine King in her PikeCounty home. . . . Since April,
Weis has been sitting in jail awaiting trial without lawyers to
represent him. The lawsuit was filed after trial judge Johnnie
Caldwell scheduled a Jan. 5 hearing on the case. . . . “It’s
frustrating,” Pike County District Attorney Scott Ballard said.
“Everybody wants the defendant to be well represented. We’ll be
ready to prosecute just as soon as they’re ready.”

If a punishment is unusually severe, if there is a strong probability
that it is inflicted arbitrarily, if it is substantially rejected by
contemporary society, and if there is no reason to believe that it
serves any penal purpose more effectively than some less severe
punishment, then the continued infliction of that punishment violates
the command of the Clause that the State may not inflict inhuman and
uncivilized punishments upon those convicted of crimes. Under these
principles and this test, death is today a ‘cruel and unusual’
punishment.